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AN OVERT TURN ON COVERT ACTION
A. JOHN RADSAN*
“At its best, covert action should be used like a well-honed scalpel,
infrequently, and with discretion lest the blade lose its edge.Ӡ
INTRODUCTION ...............................................................................................486
I. HISTORY .....................................................................................................488
A. Political Action in Italy ...............................................................490
B. Cold War Propaganda: Radio Free Europe
and Radio Liberty ........................................................................494
C. Cold War Coups ..........................................................................495
1. Operation Ajax ......................................................................496
2. Operation SUCCESS .............................................................498
3. Nicaragua and the Iran-Contra Affair ....................................500
D. Anti-Castro Plots: Bay of Pigs and
Operation MONGOOSE ..............................................................501
E. Anti-Allende Operations in Chile ................................................507
F. Supporting the Mujahedin in Afghanistan ...................................511
G. Escape from Iran .........................................................................513
II. LEGAL FRAMEWORK .................................................................................517
A. The National Security Act of 1947 ..............................................519
B. The Hughes-Ryan Amendment.....................................................521
C. The Church Committee Report ....................................................523
D. The Intelligence Authorization Act of 1979 .................................524
E. The Intelligence Oversight Act of 1980 .......................................525
F. Executive Orders 12,036 and 12,333 ..........................................527
* Associate Professor, William Mitchell College of Law ([email protected]). Professor
Radsan served as assistant general counsel at the Central Intelligence Agency from 2002–2004.
He thanks Bill Banks and Bill Daugherty for comments and suggestions and Emily Bucher,
Christine Hinrichs, Adine Momoh, and Aaron Thomas for their research assistance. Consistent
with Professor Radsan’s secrecy agreement with the CIA, this Article was first reviewed by the
CIA’s Publications Review Board to ensure that it does not contain classified information. The
views in this Article are his, not the CIA’s, but they do draw on his experience in the intelligence
community.
† RICHARD HELMS WITH WILLIAM HOOD, A LOOK OVER MY SHOULDER: A LIFE IN THE
CENTRAL INTELLIGENCE AGENCY 184 (Random House 2003).
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G. Iran-Contra .................................................................................529
H. The Intelligence Authorization Act of 1991 .................................531
III. DELEGATION ............................................................................................538
IV. LIMITED NOTICES ....................................................................................544
V. TRANSPARENCY ........................................................................................547
CONCLUSION...................................................................................................552
INTRODUCTION
Soon after 9/11, President Bush issued what has been described as the most
comprehensive plan for covert action since the Cold War.1 Attack al Qaeda
everywhere. Disrupt its plots. Penetrate its cells. Capture or kill its members.
Do what is necessary.2
The Bush plan probably continues to this day in some classified form. My
plan, in this open format, is to provide a foundation for answering two sets of
questions about American covert action. The first set is about delegation. Of
particular relevance after 9/11, may the President designate, say, fifty members
of al Qaeda for capture or death, giving the Central Intelligence Agency the
discretion to go after “similarly situated persons?” To be more specific, may
the Director of the Central Intelligence Agency (DCIA), under the broadest
presidential authorization, order a Predator strike to kill a suspected terrorist?
Or must the DCIA return to the President for approval? The second set of
questions is about notice. May the President routinely limit congressional
notification of covert action to only eight members of Congress, not including
any congressional staff? In other words, may limited notice be the rule rather
than the exception after 9/11?3
These two sets of questions, more about the process than the substance of
covert action, are large enough for one article.4 Process is most important
1. Dana Priest, Covert CIA Program Withstands New Furor; Anti-Terror Effort Continues
to Grow, WASH. POST, Dec. 30, 2005, at A1.
2. See id.
3. Another former assistant general counsel has already opined that limited notice is
contrary to the spirit of current legislation. See Suzanne E. Spaulding, Power Play: Did Bush
Roll Past Legal Stop Signs?, WASH. POST, Dec. 25, 2005, at B1 (urging that limiting classified
briefings to only eight senators and representatives amounts to “a process that effectively
eliminates the possibility of any careful oversight”). Spaulding further opined that under the
National Security Act, “[t]hese gang of eight briefings” should be rare and only exercised under
“extraordinary circumstances”—especially since “[i]t is not realistic to expect them, working
alone, to sort through complex legal issues, conduct the kind of factual investigation required for
true oversight and develop an appropriate legislative response.” Id.
4. A “lethal” covert action presents two other questions not treated in this paper: (1)
whether it is consistent with the ban on assassinations in Executive Order 12,333; and (2) whether
it comports with United States and international law. See Abraham Sofaer, The Sixth Annual
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when the checks from Congress and the courts are soft to non-existent.
Process may determine whether the White House fails or succeeds on the dark
side.
Not drawn into a broad discussion of counterterrorism, a few separate
factors are held constant here. Both the Executive Branch and Congress, in an
invitation to struggle, have overlapping national security powers. Among
many powers, the President has broad reach through the Commander-in-Chief
Clause whereas Congress controls the purse. As to policy, dealing with
international terrorism involves a paradigm somewhere between law
enforcement and the laws of armed conflict, or, perhaps more precisely,
something beyond both paradigms. In terms of national security, international
terrorists do not pose as great a threat as the Soviet Union during the Cold
War, but they are more dangerous than drug traffickers and bank robbers.
Those things are all given.
Long past the soul-searching of Watergate, very few people now question
whether the United States should conduct any covert action at all. Times have
changed, and a foreign policy that is always humane and honest has been left
for dead. The world is so dangerous after 9/11 that it would be irresponsible,
perhaps insane, to suggest that our intelligence agencies, whether engaged in
covert action or intelligence gathering, should be disbanded. The question is
not whether we should engage in covert action, but how often and under what
circumstances.
The trend is toward transparency. Our nation has been conducting covert
action with a greater public awareness and a higher level of congressional
participation than during the Cold War. Despite the doomsayers, the statutory
checks on covert action have not damaged the nation. Although most accept
that Congress should not second-guess battlefield decisions and that the
President best embodies the necessary qualities of secrecy, vigor, and dispatch,
those notions are not definitive in an analysis of separation of powers on a
complicated matter such as covert action.
To help answer the questions about delegations and notices, this Article
proceeds in classical form. Parts I and II provide background: Part I is a
selected history of covert action since World War II, while Part II provides the
framework of statutes and regulations that affects covert action’s legality.
Parts I and II do take a large share of pages. Someone new to the subject
should not jump into the current conversation without a general understanding
of the history and the law. For that reader, Parts I and II summarize what is
Waldemar A. Solf Lecture in International Law: Terrorism, the Law, and the National Defense,
126 MIL. L. REV. 89, 91 (1989).
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otherwise available in books.5 A reader who already knows this history and
law (or is not interested in it), can jump to Part III.
Part III discusses the extent to which the President may (and should)
delegate authority for covert action. (Unless the President expects to do
everything himself, some things must be entrusted to subordinates.) Part IV
revisits a perennial theme: the balance between congressional oversight and the
President’s prerogative, for operational and political reasons, to limit
knowledge of a covert action to a small group. Part V, before a short
conclusion, suggests how covert action could become more transparent while
preserving its sources and methods. To that end, a new executive order and a
new statute are considered.
I. HISTORY
This history samples the covert action the CIA has conducted since its
creation in 1947. Covert action is separate from the two core functions of our
intelligence agencies: collecting and analyzing foreign intelligence. Since
World War II, every President has ordered some form of covert action. Thus,
covert action remains a third option for American foreign policy beyond the
first two options of diplomacy and combat.
On covert action, the CIA is often damned when they do, and damned
when they do not. The first type of damnation came in 1961 after the landing
at the Bay of Pigs failed to inspire a revolt against Fidel Castro.6 The second
type came in criticisms, after 9/11, that the CIA should have killed Osama bin
Laden, rather than just trying to capture or to disrupt him.7
Our moment in 2009 continues to be dramatic. Today, animals and
machines reach places beyond the stride of American loafers and boots. Just a
few years back, on November 7, 2002, something that resembled a large
mosquito flew over a distant region of Yemen, hovering without much of a
buzz at 15,000 feet.8 It was an aircraft without a pilot.9 A camera on board
5. See WILLIAM J. DAUGHERTY, EXECUTIVE SECRETS: COVERT ACTION AND THE
PRESIDENCY (2004); ROY GODSON, DIRTY TRICKS OR TRUMP CARDS: U.S. COVERT ACTION
AND COUNTERINTELLIGENCE (1995); JOHN JACOB NUTTER, THE CIA’S BLACK OPS: COVERT
ACTION, FOREIGN POLICY, AND DEMOCRACY (2000); JOHN PRADOS, PRESIDENTS’ SECRET
WARS: CIA AND PENTAGON COVERT OPERATIONS FROM WORLD WAR II THROUGH THE
PERSIAN GULF (1996); JOHN RANELAGH, THE AGENCY: THE RISE AND DECLINE OF THE CIA
(1986); EVAN THOMAS, THE VERY BEST MEN: FOUR WHO DARED: THE EARLY YEARS OF THE
CIA (1995); GREGORY F. TREVERTON, COVERT ACTION: THE LIMITS OF INTERVENTION IN THE
POSTWAR WORLD (1987); TIM WEINER, LEGACY OF ASHES: THE HISTORY OF THE CIA (2007).
6. See infra Part I.D.
7. See BOB WOODWARD, BUSH AT WAR 5–7 (2002).
8. James Risen, An American Was Among the 6 Killed by U.S., Yemenis Say, N.Y. TIMES,
Nov. 8, 2002, at A1; Brent Sadler, In the Sights of a Joystick Killing Machine, CNN.com, June 9,
2006, http://www.cnn.com/2006/WORLD/asiapcf/06/09/sadler.predator.btsc/index.html.
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transmitted images, in real time, to an operator at Nellis Air Force Base in
Nevada.10 The operator, seated in a non-descript office, controlled the aircraft
with a joystick.11 Man and machine, based on prior tips, searched for a target
on the ground—a lone vehicle racing through the desert outside of Sana.12
After the operator spotted the target, he used a remote control to deploy a
Hellfire missile at supersonic speed.13 Within seconds, the vehicle, its driver,
and all the passengers were obliterated.14
In this way, a group of six al Qaeda members were killed.15 Included in
the strike was Senyan al-Harthi, their leader.16 Having entered a brave new
world after 9/11, they did not know what hit them. They were not given any
warning or any opportunity to surrender. All in all, it was one victory for
Team America, one defeat for the international terrorists.
As a method against the terrorists, the strike from the sky was cleaner than
captures, renditions, or detentions. Whether or not the Americans gave the
Yemeni government advanced notice of the strike, there were legitimate
concerns about cooperation in a country where there is widespread support for
al Qaeda.17
Al-Harthi’s group was the unsuspecting prey of a new American killer: the
Predator drone.18 The Predator kills suspected terrorists who do not wear
uniforms on traditional battlefields. Originally developed for overhead
surveillance,19 the Predator has become a key part of America’s strategy of
taking the battle to the terrorists.20 The Predator, in its armed and updated
version, is about America being on offense.
Not all covert action, however, is as spellbinding as the silent Predator.
The Predator is just a recent example of the third option between diplomats
sending notes and Marines hitting the shores. Between diplomacy and combat,
the CIA does many things on the dark side. Some categories within its covert
9. Risen, supra note 8.
10. Sadler, supra note 8.
11. Id.
12. David Johnston & David E. Sanger, Hunt for Suspects: Fatal Strike in Yemen Was Based
on Rules Set Out by Bush, N.Y. TIMES, Nov. 6, 2002, at A16.
13. Risen, supra note 8.
14. Johnston & Sanger, supra note 12.
15. Risen, supra note 8 (noting that one of the six people killed in the attack was a United
States citizen).
16. Id.
17. Greg Miller & Josh Meyer, CIA Missile in Yemen Kills 6 Terror Suspects, L.A. TIMES,
Nov. 2, 2002, at A1.
18. Josh Meyer, CIA Expands Use of Drones in Terror War, L.A. TIMES, Jan. 29, 2006, at
A4.
19. See THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON
TERRORIST ATTACKS UPON THE UNITED STATES 189 (2004).
20. Meyer, supra note 18; see also Priest, supra note 1.
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action arsenal are political action, propaganda, paramilitary actions, and
economic subversion. The CIA, since its creation, has taken on a shroud of
secrecy to fix foreign elections,21 plant stories in the foreign press,22 supply
insurgents who fight against our enemies,23 help American hostages escape
from captivity,24 and much more. For American covert action, there is a wide
range of themes and variations. Or, as a former CIA manager noted, “If one is
to comprehend what lies behind this bland definition, one must look to the
record of what the CIA has actually done under the orders of successive
Presidents of the United States.”25
To go beyond a bland definition, this section reviews some covert actions
since World War II.26 Of particular interest to the two sets of questions about
current covert action are the processes the Executive Branch has used in
approving covert actions and the role Congress has played in watching over
them.
A.
Political Action in Italy
Although the Axis and Allied powers signed armistices in 1945, the
international conflict continued. Two allies during the war, the United States
and the Soviets, morphed into vicious adversaries. Their battles, however, no
longer took place between tanks, troops, boats, and planes. Their battles took
place in the shadows. For the shadow war, the CIA was created in 1947, one
prong to the Truman Administration’s policy of Soviet containment made
famous by George Kennan’s essay under the pseudonym “X.”27
Even after the Soviets cut a line from Stettin to Trieste, Stalin was not
satisfied. He wanted more of the world. Not fully deterred by America’s
temporary monopoly over nuclear weapons, the Soviets continued to provoke.
As they exerted more influence through local Communist parties in Germany,
France, and Italy, it became clear to American policymakers that something
21. Ray S. Cline, Covert Action as Presidential Prerogative, 12 HARV. J.L. & PUB. POL’Y
357, 360–63 (1989).
22. See id.
23. Loch K. Johnson, On Drawing a Bright Line for Covert Operations, 86 AM. J. INT’L L.
284, 300–01 (1992).
24. See Antonio J. Mendez, CIA Goes Hollywood: A Classic Case of Deception, STUDIES IN
INTELLIGENCE, Winter 1999–2000, at 2, available at https://www.cia.gov/library/center-for-thestudy-of-intelligence/csi-publications/csi-studies/studies/winter99-00/art1.html.
25. Cline, supra note 21, at 360.
26. As the following section reveals, much of American covert action has been targeted
against the Soviets and their proxies. Now that the Cold War is over, covert action is being
updated to deal with new threats.
27. See X, The Sources of Soviet Conduct, 25 FOREIGN AFF. 566 (1947).
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more was needed to address the threat.28 America’s diplomats and generals, in
short order, agreed that the freedom of Western Europe depended on exposing
and countering Soviet machinations.29
Italy, battered by years of hot war, was very weak.30 To prevent Italy from
falling to the Soviets, a newly formed National Security Council (NSC)—in its
first top secret report—concluded that:
The United States should make full use of its political, economic and, if
necessary, military power in such manner as may be found most effective to
assist in preventing Italy from falling under the domination of the USSR either
through external armed attack or through Soviet-dominated Communist
31
movements within Italy . . . .
Economic assistance, as a part of the Marshall Plan, helped attain
America’s goal in Italy.32 Even so, the NSC recognized that spreading money
around was not sufficient to suppress the Soviets.33 For this reason, the NSC
also recommended that the United States “[a]ctively combat Communist
propaganda in Italy by an effective United States information program and by
all other practicable means.”34 These “other practicable means” were later
defined as covert actions.
28. See Cline, supra note 21, at 360–62 (citing 3 U.S. DEP’T OF STATE, FOREIGN
RELATIONS OF THE UNITED STATES: WESTERN EUROPE 724–89 (1974)); cf. S. REP. NO. 94-755,
at 40 (1976) (noting that federal intelligence agencies used “aggressive covert actions” to disrupt
domestic Communist Party activities).
29. Cline, supra note 21, at 360 n.10 (“[A]mong the officials who argued that the United
States had to fight, covertly as well as overtly, against such subversive efforts sponsored by the
Soviet Union were Secretary of State George C. Marshall, probably the most distinguished
statesman to emerge from World War II; Secretary of War Robert Patterson; Secretary of Defense
James Forrestal; George Kennan, Director of the State Department’s Policy Planning Staff[;] and
not least, President Harry S. Truman.”).
30. See DAUGHERTY, supra note 5, at 116 (stating that the “intelligence analysts foresaw a
possible Communist victory in Italy in the forthcoming spring 1948 elections”—a result Kennan
and the Truman Administration believed “would erode governments throughout Western
Europe”).
31. A REPORT TO THE NATIONAL SECURITY COUNCIL: THE POSITION OF THE UNITED
STATES WITH RESPECT TO ITALY, NSC 1/2, § 8 (Feb. 10, 1948).
32. MARK A. STOLER, GEORGE C. MARSHALL: SOLDIER-STATESMAN OF THE AMERICAN
CENTURY 162–68 (1989). Officially called the European Recovery Program, the Marshall Plan
(named after Secretary of State George C. Marshall) injected $17 billion worth of aid into the
ailing post-war economies of Western Europe. Id. at 165. The rationale was that economic health
would produce political stability which, in turn, would prevent Europe from going communist.
Id. at 162. (The Marshall Plan was also offered to the Soviet Union and the other eastern bloc
countries, but it was rejected.) Id. at 165. The Plan was a boon to American industry since the
goods purchased were largely American and were transported to Europe on American merchant
vessels. Id. at 167.
33. NSC 1/2, supra note 31, at § 3.
34. See id. § 9(e).
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The NSC also approved the “Coordination of Foreign Intelligence
Measures,” which instructed the Director of Central Intelligence (DCI) and his
operatives to carry out “covert psychological operations designed to counteract
Soviet and Soviet-inspired activities” in Italy.35 In more specific terms, the
Truman Administration sought to prevent the Italian Communist Party (PCI)
from winning a plurality in the Italian Parliament.36 The CIA, taking up the
challenge, used a special group (the Office of Special Operations) to ensure a
favorable outcome in the Italian election scheduled for the spring of 1948.37
The goal was to help those aligned with American interests as much as it
was to hurt those opposed to American interests.38 The basics to winning
elections—organizing political parties, putting up posters, and mobilizing civic
organizations—were applied to the local scene.39 All over Italy, the Americans
tried to match what the Soviets were doing.40 The CIA provided both technical
and financial assistance to the Christian Democrats, other non-communist
political parties, labor unions, and church groups, and provided stories to be
planted in newspapers and journals throughout Italy.41 Some of the CIA’s
more devious tactics included bribing officials and co-opting labor unions.42
The CIA, in Italian political action, tried to leave few fingerprints on the
assistance being provided. That was how our Italian friends wanted it because,
as with other covert actions, evidence of an American role would have exposed
friendly Italians to retribution and reduced the program’s effectiveness.43
Moreover, exposure would have supplied the Soviets with anti-American
fodder as they attempted to expand their influence over Italy and the rest of
Western Europe.
The covert action in Italy proved successful at the Italian elections in April
1948.44 In the Chicago way, some people may have voted more than once, and
the dead may have come back to cast their ballots. As a result, a democratic,
pro-Western coalition won, the PCI was prevented from playing any role in the
government, and Italy remained free.45
35. NSC 4-A (Dec. 9, 1947).
36. DAUGHERTY, supra note 5, at 117.
37. Cline, supra note 21, at 363 (citing RAY CLINE, THE CIA UNDER REAGAN, BUSH, AND
CASEY 102 (1981)).
38. See WILLIAM E. COLBY, HONORABLE MEN: MY LIFE IN THE CIA 109, 115 (1978).
39. See id. at 115–20.
40. Id. at 119 (noting as an example, Washington wanted the ability to match Communist
media abilities).
41. See Cline, supra note 21, at 362.
42. DAUGHERTY, supra note 5, at 120.
43. Cline, supra note 21, at 362.
44. Id. at 363 (citing CLINE, supra note 37, at 102).
45. Id.
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Basking in America’s success, George Kennan, as Director of the State
Department’s Policy Planning Staff, pushed for a political action unit, separate
from the CIA’s collection and analysis units.46 Rather than rely on ad hoc
efforts, he sought a permanent structure for covert action. The Italian victory
had convinced American policymakers that covert actions, no matter what
agency or sub-group performed them, “were both practical and necessary to
thwart Communism.”47 But neither the Defense Department nor the State
Department wanted to be in charge of dirty tricks. So, through National
Security Directive 10/2, the Office of Special Projects was created on June 18,
1948.48 The Office of Special Projects, renamed the Office of Policy
Coordination (OPC) a few months later, was separate from the CIA’s
espionage group, the Office of Special Operations (OSO).49 In fact, OPC
received offices from the CIA but took direction from the State Department.50
In this way, the split between covert action (OPC) and espionage (OSO) was
accentuated by separate units.
After the 1948 elections, the CIA extended its Italian political action to the
1953 and the 1958 elections.51 While the CIA was instrumental in achieving
wins in these elections, America’s successes in Italy depended more on Italian
contributions than on American ones. As Bill Colby described his role in the
1958 election, years before he became DCI: “[T]his sort of influence could not
be exerted just because we thought so and were supporting the effort. It would
have to depend on a close and cooperative working relationship with the
Italians actually involved in the fray.”52 In a most positive version, the CIA
helped harvest the seeds of democracy. To Colby, it was very important that
the covert action had this positive aspect. As he summarized: “The underlying
philosophy of the CIA was to be for a democratic Italy, not just against a
Communist one.”53 Colby, in other words, strongly believed we needed to be
fertilizers rather than spoilers.
In the new century, while the Communists are in check, political action
continues as an option against terrorists. American policymakers are probably
still tempted to fix some foreign elections so that our friends come out on top.
46. Id. (citing CLINE, supra note 37, at 102). In 1951, the OPC was dissolved and its staff
transferred to the CIA’s Directorate of Plans. Id.
47. DAUGHERTY, supra note 5, at 120 (quoting G.J.A. O’TOOLE, HONORABLE TREACHERY:
A HISTORY OF U.S. INTELLIGENCE, ESPIONAGE, AND COVERT ACTION FROM THE AMERICAN
REVOLUTION TO THE CIA 437 (1991)).
48. Id. at 122.
49. Id. at 123.
50. See PRADOS, supra note 5, at 81.
51. See COLBY, supra note 38, at 108–40.
52. Id. at 140.
53. Id. at 115.
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When they submit to this temptation, they should try to be for the rule of law
as much as they are against the terrorists and the regimes that support them.
B.
Cold War Propaganda: Radio Free Europe and Radio Liberty
Building on its success in Italy, the CIA extended covert action to Eastern
Europe and the Soviet Union. Two programs, Radio Free Europe (RFE) and
Radio Liberty (RL), part of what CIA manager Frank Wisner called his
“Mighty Wurlitzer,” are famous.54 It is not clear from the historical record
whether these programs were conceived at the White House or the CIA.55
Whatever their source, the CIA cultivated RFE and RL for many years.
Eventually, when the American support became too transparent, these
programs were shifted to an overt status.56
Before the shift, the CIA did what it could to hide its support for RFE and
57
RL. The hidden support increased legitimacy with audiences and prevented
RFE/RL employees from being branded spies.58 For cover, RFE and RL
pretended they were funded by private sources.59 Thus, in the war of ideas
with the Soviet Union, the CIA relied on RFE and RL to broadcast behind the
Iron Curtain, past the Communist censors.60 Otherwise, the Communist
governments were presenting an official—and distorted—version of events in
the region and the rest of the world.61
RFE and RL, to keep their audience’s attention, mixed in music with the
news as well as segments that strived to preserve non-Russian cultures within
54. See RANELAGH, supra note 5, at 216; Cline, supra note 21, at 363–64 & n.29 (noting
that the CIA implemented RFE in 1950, and a year later created the companion broadcasting
service RL).
55. See, e.g., SIG MICKELSON, AMERICA’S OTHER VOICE: THE STORY OF RADIO FREE
EUROPE AND RADIO LIBERTY 4, 11 (1983) (noting that RFE and RL, while having “carefully
concealed origins,” were likely “conceived by senior officials of the Department of State, the
Department of Defense, and the intelligence community”); see also GENE SOSIN, SPARKS OF
LIBERTY: AN INSIDER’S MEMOIR OF RADIO LIBERTY 1–2 (1999) (attributing RL to “[v]isionary
American statesmen under President Harry Truman in the State and Defense Departments” along
with the initiative of George F. Kennan, the policy planning advisor to the Secretary of State after
the war).
56. See Cline, supra note 21, at 364.
57. Id. at 364–65.
58. Id.
59. Cf. DAUGHERTY, supra note 5, at 74 (“Although funded and run covertly by the CIA for
a number of years before being overtly managed by the United States Information Service, there
was never much doubt among listeners as to the sponsoring government.”).
60. Cline, supra note 21, at 364; DAUGHERTY, supra note 5, at 73–74. Propaganda that
disseminates accurate information is called “white” propaganda and is “used to present to foreign
audiences the originating government’s positions on issues, to explain policy decisions, to
provide news unavailable from the local media, and generally to put a human face on the country
and its people to the world.” Id. at 75.
61. DAUGHERTY, supra note 5, at 73–74.
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the Soviet Union.62 The bulk of RFE and RL employees were political
refugees from the Soviet bloc.63 Not only could these people speak the
languages of the region, but they also understood the nuances of their listeners
back home. Their broadcasts, from studios safely outside the Iron Curtain,
overcame jamming and other technical obstacles.64
Since RFE and RL developed many loyal listeners, the CIA considered
these two programs a success.65 But, unlike the results of an Italian election,
marked by winners and losers at the polls, it was difficult to measure the
effects of these broadcasts.66 Further, it was next to impossible to analyze how
propaganda compared to other types of covert action.
The stakes in propaganda are not as high as other forms of covert action,
such as support to insurgents, because propaganda is less likely to trigger
violence from our adversaries. That is an obvious upside. The downside,
commensurate with propaganda’s low risk, is its limited effect. On balance,
both RFE and RL served in the psychological war against the Soviets:
disseminating accurate information, neutralizing Soviet disinformation, and
pressuring Communist regimes.67
It is clear, in retrospect, that RFE and RL deserve some credit for helping
win the Cold War. Indeed, many leaders in newly independent states credited
these two CIA programs.68 Today, in a variation on a Cold War theme,
American propaganda has probably turned to winning the hearts and minds of
the Islamic world.
C. Cold War Coups
In the Cold War’s early days, the CIA concentrated on political action and
propaganda, a modesty that made sense for an agency that worked in
temporary offices in Washington.69 In the first battles against the Soviets, the
CIA’s work was decidedly less violent (and less expensive) than
countermeasures from the Department of Defense. Later, CIA forays into Iran
62. SOSIN, supra note 55, at 6.
63. Cline, supra note 21, at 364.
64. Id.
65. Id.
66. See id.
67. Id.
68. See, e.g., Valdas Adamkus, President of Lithuania, Address to the Broadcasting Board of
Governors (July 18, 2002), available at http://adamkus.president.lt/en/one.phtml?id=3059 (stating
that “[e]ach message from Radio Free Europe . . . contributed to breaking the blockade of
information,” which “[n]o doubt . . . helped Lithuania and other enslaved nations of Europe win
independence and freedom”). President Adamkus went on to suggest that RFE and RL
contributed instrumentally to “[t]he collapse of the Soviet empire, restoration of independent
states and development of democracy. . . .” Id.
69. COLBY, supra note 38, at 71–72, 79–80.
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and Guatemala changed the division of labor between the CIA and the military
as American policymakers became more fearful about the Soviet threat.
1.
Operation Ajax
By 1952, the covert action unit (OPC) and the espionage unit (OSO) were
combined into a Directorate of Plans at the CIA.70 In that year, Mohammed
Mossadegh’s election as Prime Minister of Iran alarmed those opposed to the
Soviets.71 Although historians will forever debate how far Mossadegh really
tilted to the left, the British, and later the Americans, considered his ties to the
Iranian Tudeh (or Communist) Party and his nationalizing of the British oil
concession to have gone too far.72 The British convinced many countries to
join them in a boycott of Iranian oil, and the British intelligence services
reached out to the CIA.73 Step by step, the Americans and the British moved
toward a decision that Mossadegh had to go.74 Because political action and
propaganda, by themselves, were insufficient for the task, President
Eisenhower soon gave the green light for a coup.75
The CIA took the lead on the coup, encouraged and aided by the British,
who were fixed on regaining their Iranian oil assets.76 But the stakes were not
only financial. Doing nothing risked Mossadegh going Communist.77 Doing
something, as with most conflicts during the Cold War, risked conflict with the
Russians. Despite these risks, there is little evidence that the American
70. DAUGHERTY, supra note 5, at 123.
71. PRADOS, supra note 5, at 93–97.
72. W. MICHAEL REISMAN & JAMES E. BAKER, REGULATING COVERT ACTION:
PRACTICES, CONTEXTS, AND POLICIES OF COVERT COERCION ABROAD IN INTERNATIONAL AND
AMERICAN LAW 49–50 (1992); see also Iran: Whose Ox is Nationalized?, TIME, Mar. 26, 1951,
available at http://www.time.com/time/magazine/article/0,9171,805925-1,00.html.
73. PRADOS, supra note 5, at 93.
74. See Cline, supra note 21, at 365; Mark J. Gasiorowski, The 1953 Coup D’etat in Iran, 19
INT’L J. MIDDLE E. STUD. 261, 262 (1987).
75. DAUGHERTY, supra note 5, at 137.
76. See JAMES A. BILL, THE EAGLE AND THE LION: THE TRAGEDY OF AMERICAN-IRANIAN
RELATIONS 87 (1988); PRADOS, supra note 5, at 92; see also Cline, supra note 21, at 365. In
May of 2000, the New York Times published a previously classified CIA history. See James
Risen, Secrets of History: The CIA in Iran, N.Y. TIMES ON THE WEB, Apr. 16, 2000,
http://www.nytimes.com/library/world/mideast/041600iran-cia-index.html. This history revealed
that the CIA “worked directly with Iranian royalist military officers to pick Mossadegh’s [the
Prime Minister] successor, directed a campaign of bombings by Iranians posing as members of
the Communist Party, and planted articles and editorial cartoons in newspapers, then provided
funding for the new government.” Stephen Dycus & Barry Kellman, International Law and
National Security, 35 INT’L LAW 811, 836 (2001).
77. See REISMAN & BAKER, supra note 72, at 49. But see PRADOS, supra note 5, at 96;
WEINER, supra note 5, at 84–86.
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Executive Branch consulted with Congress on the Iranian covert action.78 That
was a sign of the times.
Kermit Roosevelt, the grandson of Teddy Roosevelt and an operative with
Middle East experience, made several trips to Iran to foment a coup.79 (The
Americans and British expected that the Shah of Iran, more aligned with
Western interests, could reassert power once the Prime Minister was ousted
from office.) At first, things did not go so well for Kermit Roosevelt and the
rest of his CIA team. After the original plan for the coup leaked to the Prime
Minister, the Shah took exile in Iraq.80 Undeterred, Roosevelt conceived
another plan, coined “Operation Ajax,” with two prongs. First, Roosevelt paid
hundreds of Iranians to intimidate Mossadegh’s supporters through
demonstrations and other street tactics.81 Second, having identified Iranian
military leaders with strong loyalties to the Shah, Roosevelt trained and
directed them to take over local radio stations that, in turn, transmitted attacks
on the Prime Minister.82 The coup, the second time around, was an easy
success. In exchange for a modest American investment,83 the Iranian people
turned on Mossadegh.84 Very few lives were lost, Mossadegh was ousted, and
the Shah returned to his throne.85
Operation Ajax, no doubt, was a short-term success. The coup stifled
Soviet expansion into Iran and preserved Western control over Iran’s oil and
gas.86 Thus, Kermit Roosevelt, in creating his own legend, looked back on
Iran with pride. Yet, Roosevelt understood, even if his superiors did not, that
the Iranian success stemmed as much from good luck as it did from the CIA’s
78. See Gasiorowski, supra note 74, at 270–74 (describing the Executive Branch’s approvals
for CIA action).
79. See Winston P. Nagan & Craig Hammer, Patriotism, Nationalism, and the War on
Terror: A Mild Plea in Avoidance, 56 FLA. L. REV. 933, 969 (2004) (citing KERMIT ROOSEVELT,
COUNTERCOUP: THE STRUGGLE FOR THE CONTROL OF IRAN (1979)).
80. Gasiorowski, supra note 74, at 273 (1987); see generally Moyara de Moraes Ruehsen,
Operation ‘Ajax’ Revisited: Iran, 1953, 29 MIDDLE E. STUD. 467 (1993) (recounting American
involvement in the 1953 coup).
81. Cline, supra note 21, at 365.
82. Id.
83. In a conversation with Allen Dulles, Kermit Roosevelt said, “On the cost, sir, we really
feel that it will be minimal—at least minimal for anything of such vital significance. One, or
perhaps two, hundred thousand dollars is the most I can see us being required to spend.”
ROOSEVELT, supra note 79, at 14; cf. WEINER, supra note 5, at 89 (estimating the Iranian covert
action cost the United States over $5 million).
84. See ROOSEVELT, supra note 79, at 210 (“We believed—and we were proven right—that
if the people and the armed forces [of Iran] were shown that they must choose, that Mossadegh
was forcing them to choose, between their monarch and a revolutionary figure backed by the
Soviet Union, they could, and would, make only one choice.”).
85. See PRADOS, supra note 5, at 94–97.
86. Id.
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mastery.87 For this reason, Roosevelt, when asked to apply Ajax to other
countries, warned that coups could not solve all American problems.88
Notwithstanding Roosevelt, the White House was more inclined to credit “the
Agency’s role as far more determinative and decisive than it was.”89
Closer to the present, Iranians still remember the coup in their country.
Many argue that American meddling in 1953 contributed to the Iranian
Revolution and to the taking of American hostages from 1979 until 1981.90 In
fairness, it may be too much to expect policymakers and their operators to
foresee all the ripples to their actions. Yes, covert action must complement
other aspects of American foreign policy. But strategic planning, on coups or
foreign policy, is a luxury for those who deal with constant crisis.
2.
Operation SUCCESS
After Mossadegh, CIA-sponsored coups became a generic export of sorts.
A year after the Iranian coup, the CIA flexed its paramilitary muscle on
Operation SUCCESS.91 This time, President Eisenhower set his sights on the
Guatemalan President, Jacobo Arbenz Guzmán.92 Since his election, Arbenz
had pursued ambitious agrarian reform, attempting to reduce the influence of
United States corporations including the United Fruit Company.93 Apparently
Arbenz had not learned the Mossadegh lesson: a Third-World leader who
expropriated Western holdings was asking for trouble. Even more menacing
than President Arbenz’s expropriations were his links to the Guatemalan
87. DAUGHERTY, supra note 5, at 137 (“The success of [Ajax] stemmed from just the right
amount of pressure on the right people, at the right time and place.”).
88. Id. In a final report, Roosevelt explained that if “we, the CIA, are ever going to try
something like this again, we must be absolutely sure that people and the army want what we
want. If not, you’d better give the job to the Marines.” Id. at 138.
89. Id. at 137.
90. Daniel R. Williams, After the Gold Rush—Part I: Hamdi, 9/11, and the Dark Side of the
Enlightenment, 112 PENN. ST. L. REV. 341, 401 n.215 (2007).
91. See STEPHEN SCHLESINGER & STEPHEN KINZER, BITTER FRUIT: THE UNTOLD STORY
OF THE AMERICAN COUP IN GUATEMALA 109 (1982). Under President Truman, a coup called
Operation Fortune had been aborted in Guatemala, which hardened President Eisenhower’s
attitude toward the country. Id. at 102–03. Operation Success was so named to reflect the
renewed optimism of its creators. Id. at 109.
92. Id. at 138–39; Cline, supra note 21, at 365–66.
93. SCHLESINGER & KINZER, supra note 91, at 53. Arbenz, according to one account, was
determined “to wrest control of the economy from the U.S. corporations controlling it.” Id.
Alfonso Bauer Paiz, Minister of Labor and Economy under Arbenz, expressed that “[a]ll the
achievements of the [United Fruit Company] were made at the expense of the impoverishment of
the country and by acquisitive practices. . . . The United Fruit Company is the principal enemy of
the progress of Guatemala, of its democracy and of every effort directed at its economic
liberation.” Id. at 72–73.
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Communist Party.94 So Eisenhower, unwilling to risk a “Soviet beachhead in
our hemisphere,”95 called on the CIA, cheaper and seemingly more effective
than the military.
For the Guatemala project, the CIA established an operations center in
Florida.96 This center helped arm and train a “Liberation Army” under the
command of Colonel Carlos Castillo Armas, exiled from the Guatemalan
Army.97 The Guatemala project was not limited to paramilitary assistance,
however.
American businessmen were convinced to exert economic
pressure.98 Radio propaganda and leaflets stirred up trouble.99 And military
aid was distributed to other countries in the region, 100 creating a comparative
disadvantage for Guatemala.101
After a back-and-forth string of events, the rebel army deployed itself into
Guatemala in 1954.102 But they did not take the capital in a snap. When they
bogged down, the CIA provided them with six Thunderbolt P-47 fighter planes
and three P-51 fighter-bombers.103 The CIA also recruited pilots to fly from a
staging ground in Nicaragua.104 The supplies and the recruitment were much
more than the CIA had provided during the Iranian coup. Air support turned
the situation to the rebels’ advantage, and the CIA-sponsored broadcasts
94. See JOHN LEWIS GADDIS, WE NOW KNOW: RETHINKING COLD WAR HISTORY 177–78
(1997).
95. DAUGHERTY, supra note 5, at 139 (quoting Eisenhower’s characterization of the risk that
Guzman’s presidency posed).
96. SCHLESINGER & KINZER, supra note 91, at 113.
97. See id. at 126, 160. Armas, a longtime enemy of Arbenz, plotted from neighboring
Honduras, declaring that “90 percent of the people of Guatemala [were] thoroughly ready to rise
up and fight against the government.” Id. at 8.
98. See NICK CULLATHER, SECRET HISTORY: THE CIA’s CLASSIFIED ACCOUNT OF ITS
OPERATIONS IN GUATEMALA, 1952–1954, at 41 (1999).
99. SCHLESINGER & KINZER, supra note 91, at 111, 167.
100. See id. at 103. John Moors Cabot, Assistant Secretary of State for Inter-American
Affairs, asked the State Department to assess U.S. arms sales to countries near Guatemala. Id.
The study illustrated that “providing arms to nearby countries hostile to Arbenz would be a clear
enough threat to the Guatemalan military to induce it to withdraw support for Arbenz.” Id.
101. See CIA AND ASSASSINATIONS: THE GUATEMALA 1954 DOCUMENTS, NATIONAL
SECURITY ARCHIVE ELECTRONIC BRIEFING BOOK NO. 4 (Kate Doyle & Peter Kornbluh eds.,
1997), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB4/index.html (stating that
Eisenhower authorized $2.7 million in August of 1953 for “psychological warfare and political
action” among other components of paramilitary war).
102. RANELAGH, supra note 5, at 264–69; see also Cline, supra note 21, at 365.
103. See SCHLESINGER & KINZER, supra note 91, at 115 (stating that neither of these planes
had ever been seen in Latin air forces).
104. SCHLESINGER & KINZER, supra note 91, at 21 (discussing that on the third day of the
rebels’ invasion, the Mexican Government rescued two American crewmen from a P-47 that had
crash-landed just past Guatemala’s northwestern border); see also Cline, supra note 21, at 365–
66.
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created the impression of a much larger rebel army. 105 Some in the
Guatemalan military, wavering in their support for President Arbenz, lost their
nerve. After an entire garrison surrendered to the rebels, President Arbenz
rushed into exile.106
Once again, the CIA had gotten its way. Arbenz was out of Guatemala,
and an American puppet was in. Although the coup was a short-term success,
it exacerbated anti-American sentiment in Latin America, confirming that the
Americans would do anything to protect their profits. 107 Further, it set the
foundation for forty years of Guatemalan dictatorship and unleashed the dark
forces of Guatemalan society, not easily managed or controlled from afar.108
Even so, it led the Eisenhower Administration (and future administrations) to
see covert action as an easy solution.109
Covert action, rather than complementing diplomacy and other instruments
of American power, became a cheap substitute for policy. In short, the Iranian
and Guatemalan experiences spoiled American leaders. As William Daugherty
aptly notes, “these two successes left in their wake an attitude of hubris within
the Agency . . . .”110
3.
Nicaragua and the Iran-Contra Affair
More than twenty years later, in a variation on the Guatemalan theme, the
Reagan Administration returned to Central America. Restoring Cold War
lines, Reagan backed a rebel army against the leftist government in
Nicaragua.111 But Reagan’s Contras, unlike Armas in Guatemala, could not
trick themselves into victory since the Sandinistas maintained better control of
their forces.112 Stubborn, and in the face of congressional restrictions, Reagan
continued to back the Contras.113 The friction between the President and
105. See SCHLESINGER & KINZER, supra note 91, at 111, 169–70. The radio broadcasts were
so effective that Arbenz’s Minister of Communication, Colonel Carlos Aldana Sandoval, told
acquaintances “he was convinced that Arbenz was sinking because the rebel forces ‘were being
swelled by thousands of volunteers.’” Id. at 185. In reality, Armas never commanded more than
400 men. Id.
106. See Cline, supra note 21, at 365–66.
107. See SCHLESINGER & KINZER, supra note 91, at 229.
108. See id. at 250–54. (“[D]eath squads linked to the [Guatemalan armed forces] reached
into every sector of national life. Street-corner murders of lawyers, schoolteachers, journalists,
peasant leaders, priests and religious workers, politicians, trade union organizers, students,
professors and others continued on a daily basis.”).
109. DAUGHERTY, supra note 5, at 139–40. The Eisenhower Administration viewed covert
action as a “‘silver bullet’ that could slay Communist-dominated puppet governments easily and
almost with impunity.” Id. at 140.
110. Id.
111. See PRADOS, supra note 5, at 396–98.
112. Id. at 462–63.
113. Id. at 409–18.
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Congress at home led to investigations, hearings, and indictments, events
which prompted reforms that now serve as foundation for Congress’s
expanded role on covert action.114
Today, fomenting coups is not an attractive option for countering terrorists.
The international community is not keen on a superpower meddling in other
countries. And in places such as Egypt, Jordan, Pakistan, and Saudi Arabia,
America’s problems have less to do with the governments than with the people
there. In a basic sense, the Iran-Contra affair showed that successful coups in
Iran and Guatemala were relics of the past.
Back in the 1950s, the decade ended with perceived successes on covert
action. The CIA was proud of what it had accomplished, sometimes behind
the scenes, sometimes on center stage, in Italy, Iran, and Guatemala. (A failed
coup in 1957 against President Sukarno of Indonesia did not seem to trouble
policymakers or the public.115) The 1960s, however, did not start off so well.
At the beginning of the decade, just before a planned summit between
President Dwight Eisenhower and Soviet leader Nikita Khrushchev, the
Soviets shot Francis Gary Powers from his U-2 surveillance plane.116 Soon,
things got much worse in a different part of the world.
D. Anti-Castro Plots: Bay of Pigs and Operation MONGOOSE
In Iran and Guatemala, the CIA established theme and variation: if the
Americans did not like the leader of a Third World country—if he were too
close to the Soviets or might cozy up to the Soviets—then he was pushed from
power. When overt measures were too costly or too dangerous, covert action
114. See Christopher M. Ford, Intelligence Demands in a Democratic State: Congressional
Intelligence Oversight, 81 TUL. L. REV. 721, 753–54 (2007). Ford writes that:
These revelations, collectively known as the Iran-Contra Affair, sparked a significant
public and congressional response, which focused largely on the executive’s conduct in
relation to congressional oversight and guidance. The findings of independent counsel
during this time focused on the actions of members of the executive acting under guidance
from the President in contravention of congressional guidance. In his concluding
remarks, the independent counsel found:
The lesson of the Iran/contra is that if our system of government is to function
properly, the branches of government must deal with one another honestly and
cooperatively. When disputes arise between the Executive and Legislative branches,
as they surely will, the laws that emerge from such disputes must be obeyed. . . .
Congress has the duty and the power under our system of checks and balances to
ensure that the President and his Cabinet officers are faithful to their oaths.
Id. (citations omitted) (quoting 1 LAWRENCE E. WALSH, FINAL REPORT OF THE INDEPENDENT
COUNSEL FOR IRAN/CONTRA MATTERS, 566 (Aug. 4, 1993)).
115. PRADOS, supra note 5, at 130–44.
116. Id. at 165–66.
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could take care of a problem.117 Going into the 1960s, a big problem for
American policymakers was Fidel Castro, riding high from his military victory
over Cuban dictator, Fulgencio Batista.118
Almost as soon as Castro took power in 1959, the Eisenhower
Administration plotted his demise. The CIA’s main project, Operation
ZAPATA, armed and trained Cuban exiles in Guatemala.119 (Since the leftists
had been removed in Guatemala, the new Guatemalan leaders could repay their
debt to the CIA by allowing their territory to serve as a staging point.) On top
of the paramilitary project, the CIA added sabotage, political action, and antiCastro propaganda.120 Richard Helms, looking back on his CIA career,
summarizes the audacity of the Cuban operation:
President Eisenhower approved the Agency plan involving propaganda, the
creation of a unified Cuban opposition to Castro, and the formation of a cadre
of some twenty exiles trained in guerrilla tactics—infiltration, sabotage, and
communications. This group was, in turn, to develop a hundred or more
121
Cuban agents who were to be infiltrated into Cuba.
Although Eisenhower did not necessarily articulate his fears through a
“domino theory,” he did believe that Castro could cause other countries to go
Communist.122 Back then, most everything was considered through a binary
lens: a loss for us was a gain for them, and vice versa.
During Operation ZAPATA, Allen Dulles was the DCI, Richard Bissell,
the director of operations.123 Dulles, a legendary case officer, had served in the
Office of Strategic Services, the precursor to the CIA, during World War II.124
Bissell’s claim to fame was developing the U-2 spy plane.125 Between Dulles
and Bissell, preparations for the Cuban invasion moved forward during the
Eisenhower Administration and continued into the next administration.126
Again, Richard Helms, who favored foreign intelligence for the CIA over
117. See PETER WYDEN, BAY OF PIGS: THE UNTOLD STORY 323–24 (1979) (“[T]he success
in overturning governments in places like Guatemala . . . insinuated the notion into the heads of
policy-makers, even the genial Ike, that the CIA could secretly perform ‘with baling wire’ what
generals could no longer be allowed to do openly with armies . . . .”).
118. See PRADOS, supra note 5, at 171–75.
119. See DAUGHERTY, supra note 5, at 146, 154.
120. See, e.g., SUBJECT TO SOLUTION: PROBLEMS IN CUBAN-U.S. RELATIONS 145–46
(Wayne S. Smith & Esteban Morales Dominguez eds., 1988) (discussing “Radio Swan,” the antiCastro propaganda that aired at the end of the Eisenhower administration).
121. HELMS, supra note †, at 173.
122. See PRADOS, supra note 5, at 173–75.
123. DAUGHERTY, supra note 5, at 146–48.
124. Id. at 154.
125. See RANELAGH, supra note 5, at 311.
126. DAUGHERTY, supra note 5, at 153–55.
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covert action, was not very kind in assessing his peers: “The only venue for a
plan of this scope is a Hollywood motion picture studio.”127
The new president, John F. Kennedy, briefed by Dulles and Bissell during
the transition, did have an opportunity to call off the Cuban operation.128
Refusing to approve a covert action, of course, is one thing. Canceling
something approved by a prior president who had been a supreme allied
commander during a world war was quite another. Dulles and Bissell, much
like a later DCI who spoke of “slam dunks” concerning Iraqi weapons of mass
destruction,129 assured the new president the invasion would succeed.130 So
President Kennedy, clinging to his own notion of plausible denial, did not stop
the Cuban operation.131
Nothing at the time, neither a statute nor an executive order, required the
NSC or any other body to deliberate on the matter. Further, President Kennedy
tended toward more centralized, informal decisionmaking.132 As a result of
this preference and the CIA’s secrecy, people who could have spoken out
about flaws to the operation—experts at the State Department, the Defense
Department, and the CIA—were kept out of the loop.133 These people should
have questioned the change in the proposed landing site to a swampy part of
Cuba’s coastline as well as the assumption that the Cuban people would join
the insurrection.134 Even so, an irony to the CIA’s secrecy is that Castro may
have known about the attack well in advance because the Cuban intelligence
services may have picked up the bits and pieces about an invasion in the open
127. HELMS, supra note †, at 174.
128. See DAUGHERTY, supra note 5, at 153–56.
129. See BOB WOODWARD, PLAN OF ATTACK 247–50 (2004). After hearing an
unconvincing presentation about weapons of mass destruction in Iraq, President Bush pressed
DCI George Tenet:
Bush turned to Tenet. “I’ve been told all this intelligence about having [weapons of
mass destruction] and this is the best we’ve got?”
From the end of one of the couches in the Oval Office, Tenet rose up, threw his arms
in the air. “It’s a slam dunk case!” the DCI said.
Bush pressed. “George, how confident are you?”
Tenet, a basketball fan who attended as many home games of his alma mater
Georgetown as possible, leaned forward and threw his arms up again. “Don’t worry, it’s a
slam dunk!”
Id. at 249; but see GEORGE TENET WITH BILL HARLOW, AT THE CENTER OF THE STORM: MY
YEARS AT THE CIA 359–67 (2007) (arguing the phrase was taken out of context).
130. DAUGHERTY, supra note 5, at 155.
131. Id. at 154. But see id. at 152–53 (noting that Kennedy’s involvement was direct enough
to erode the idea of plausible deniability).
132. See Catherine F. Sheehan, Opening the Government’s Electronic Mail: Public Access to
National Security Council Records, 35 B.C. L. REV. 1145, 1158 (1994).
133. DAUGHERTY, supra note 5, at 98, 154.
134. Id.
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sources of the American press.135 Plus, they may have had secret sources in a
brothel where the Cuban exiles made frequent visits from their Guatemalan
training ground.
On April 17, 1961, despite the flaws to the operation, over 1400 Cuban
rebels landed on the beach at the Bay of Pigs.136 Armed with American
weapons, they expected to wade through the swamps, hike over the mountains,
and plant their flag in Havana. Although greatly outnumbered by Castro’s
forces, they hoped the news of their landing would cause Castro’s forces to
switch to their side or to let them be. Either way, that was wishful thinking.
The rebels were confronted by heavy opposition, armed with Soviet
weapons.137 The rebels were shelled and bombed from land and air.138 Castro,
unlike Mossadegh, kept the lid on his country. Castro, unlike Arbenz, did not
lose his nerve.139
For the Cuban rebels, pinned on the beach, something else needed to be
done. The intelligence community, in a rush, informed President Kennedy of
the brutal beating the rebels were taking.140 Some of Kennedy’s advisers, in a
late night cabinet meeting, expected American air strikes to save them.141
Such an attack would have shown, despite official denials, that the United
States was behind the rebels. For this reason, President Kennedy, still opposed
to an outright military attack against Cuba and fearful of escalation, refused the
recommended air strikes from an American carrier.142 All that he permitted
were some limited strikes by rebel pilots, flying planes out of Nicaragua.143 In
effect, the rebels on the ground in Cuba were left to go it alone. Two days
after their ill-fated landing, more than one hundred were dead.144 The rest,
shortly thereafter, were captured and imprisoned.145
In hindsight, as much as the rebels hated Kennedy for betrayal, his fear that
the Bay of Pigs could escalate into a larger conflict with the Soviet Union was
135.
136.
137.
138.
See THOMAS, supra note 5, at 243.
See ROBERT DALLEK, AN UNFINISHED LIFE: JOHN F. KENNEDY 361 (2003).
Id. at 364–65.
CHRISTOPHER ANDREW, FOR THE PRESIDENT’S EYES ONLY: SECRET INTELLIGENCE
AND THE AMERICAN PRESIDENCY FROM WASHINGTON TO BUSH 264 (1995).
139. See DALLEK, supra note 136, at 318 (“If the CIA could tame the Guatemala ant, this said
nothing about the Cuba elephant.”).
140. ANDREW, supra note 138, at 264–65.
141. THOMAS, supra note 5, at 263.
142. See DALLEK, supra note 136, at 365.
143. THOMAS, supra note 5, at 263.
144. DALLEK, supra note 136, at 366.
145. Id. at 365. Eventually the prisoners were released in exchange for a large payment from
the United States. Id.
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not farfetched.146 The Cuban Missile Crisis, later in his administration, proved
that Cuba had the potential to take the United States to nuclear war.147
The Bay of Pigs balanced away the CIA’s ledger of success on coups in
Iran and Guatemala. Though President Eisenhower had started the project,
President Kennedy accepted the embarrassment.148 Soon after, President
Kennedy is reported to have said that he wanted to splinter the CIA into a
thousand pieces.149 Splintered or not, Operation ZAPATA, in a few ugly days,
marked the “end of the golden age of covert action.”150 Even today, as shown
in Robert DeNiro’s movie The Good Shepherd, the Bay of Pigs stands for the
failure of American covert action and the limits of American power.
President Kennedy took the Bay of Pigs personally.151 As he recovered
between rounds, Allen Dulles and Richard Bissell took the fall for him, and the
rest of the CIA stayed in the President’s corner.152 Kennedy battled Castro in
the later rounds, and Operation MONGOOSE was a new punch to take down
the Cuban menace.153 For the new covert action, Brigadier General Edward G.
Lansdale replaced Bissell as Chief of Operations.154 Against Castro, Lansdale
drew on his counter-insurgency experience in Asia to manage a multi-faceted
program of paramilitary activity, economic sabotage, and propaganda.155 That
was not all, though.
The United States also tried the direct measure of killing Castro.156 Some
plots had taken place before the Bay of Pigs, some after.157 Whatever the time
frame, all of the plots were crazy. Thus, in less than two decades, from Italy to
146. See ANDREW, supra note 138, at 265–70.
147. See id. at 286–302.
148. See WYDEN, supra note 117, at 305 (“Facing the reporters, Kennedy brushed aside the
stories about who was to blame: ‘There’s an old saying that victory has a hundred fathers and
defeat is an orphan.’”).
149. Scott P. Johnson, The Prosecution of Lee Harvey Oswald, 48 S. TEX. L. REV. 667, 668
n.6 (2007) (citing MARK LANE, PLAUSIBLE DENIAL: WAS THE CIA INVOLVED IN THE
ASSASSINATION OF JFK? 98–99 (1991)).
150. DAUGHERTY, supra note 5, at 154 (quoting one intelligence veteran and scholar).
151. See DALLEK, supra note 136, at 366–67 (stating that Pierre Salinger, the spokesman for
the Kennedy White House, found the President “crying in his bedroom” the following morning
and that “[f]or days after the defeat Kennedy’s anguish and dejection were evident to people
around him. . . . He would talk to himself and interrupt conversations with the non sequitur ‘How
could I have been so stupid?’”).
152. ANDREW, supra note 138, at 265–66.
153. Id. at 275.
154. Id.
155. See PRADOS, supra note 5, at 211–14; see also GlobalSecurity.org, Operation
Mongoose, http://www.globalsecurity.org/intell/ops/mongoose.htm (last visited Feb. 15, 2009).
156. See ANDREW, supra note 138, at 274–77; see also PRADOS, supra note 5, at 212.
157. See PRADOS, supra note 5, at 211–14.
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Cuba, the CIA’s covert action devolved from non-violent measures such as
political action and propaganda to the most violent measures.
To this day, it is not clear whether President Kennedy specifically ordered
any hits.158 It is also not clear how widely the hits were discussed at the CIA’s
senior levels. The paper trail at the White House or at CIA headquarters is just
not there. What is clear, however, is that in the absence of written orders from
the President, there were many winks and nods from the Oval Office all the
way down to the operatives in the field.
For the Cuban operations, President Kennedy trusted his brother as liaison
between the White House and the CIA.159 After the Bay of Pigs, Bobby
immersed himself in the dirty details of American intelligence activities, and
he must have been at least aware of some assassination plots.160 Such work by
an Attorney General challenges those who view the Justice Department as a
general check on illegality and imprudence in covert action. President Carter,
reacting to abuses revealed in the 1970s, formally included the Attorney
General in the process.161 President Reagan, reacting to the perception of
Carter’s fecklessness and legalistic style, did not include the Attorney General
as a rule.162 But back in the Kennedy Administration, as a part of a “Special
Group Augmented” at the NSC, the Attorney General actually approved and
ran intelligence activities.163 Bobby, all in all, did very different things from
oversight.164
While Bobby Kennedy insisted the FBI do more to combat organized
crime, the CIA, deeper in the shadows, reached out to the mob on assassination
plots against Castro.165 The Kennedy brothers, whether they were aware of it
or not, were handing mobsters an argument that they should not be investigated
or prosecuted, because of their assistance to American foreign policy. Rife
was the potential for blackmail.
158. See ANDREW, supra note 138, at 275–76.
159. THOMAS, supra note 5, at 271.
160. Id. at 287.
161. DAUGHERTY, supra note 5, at 184.
162. Id. at 194.
163. THOMAS, supra note 5, at 287.
164. Id.
165. See S. REP. NO. 94-465, at 71 (1975) (providing evidence that from 1960 to 1965, the
United States Government used “underworld figures” and anti-Castro exiles in a plot to
assassinate Castro); see also WYDEN, supra note 117, at 40–41 (noting that Colonel Sheffield
Edwards, director of the Agency’s Office of Security, proposed that the “assassins be hand-picked
by the American underworld, specifically syndicate interests who had been driven out of their
Havana gambling casinos by the Castro regime . . . . Bissell attributed high standards of
efficiency to the Mafia. Its reputation for silence would be an asset. Its experience with
successful ‘hits’ was unquestioned”).
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From 1960–1965, the CIA took at least eight different steps toward
assassinating the Cuban leader.166 The most conventional plots depended on
rifles, tainted cigars, and pens that injected poisons.167 The least conventional
plots relied on contaminated wet suits and seashells filled with explosives to
interfere with Castro’s scuba-diving.168
In other aspects of MONGOOSE, the CIA coordinated with Cuban exiles
in Florida to discredit Castro’s regime.169 Further, the CIA considered a
biological attack on Cuban crops and spreading word to Cuba’s large Catholic
population that Christ would return as soon as Castro was gone.170 But, no
matter how much money the Kennedy Administration spent, no matter the
ingenuity and depravity of the schemes, the CIA failed to take care of the
Cuban problem.171 Eventually, the Kennedy brothers were themselves
assassinated. And Fidel, whose beard grew long and gray, stayed for decades
in the American backyard, a Communist still walking—even after the Soviet
Union’s demise.172
Despite the lack of success against Fidel Castro, the CIA today may
actually be back in the business of targeted killing. As the 2002 Predator strike
in Yemen showed, the targets may now be suspected terrorists instead of heads
of state.173 And the battlefield may have shifted from Cuba to Asia. While the
technology has been updated, the expected results are just as violent as they
were in the 1960s: kill them before they kill us.
E.
Anti-Allende Operations in Chile
Cuba was not the only problem in Latin America. During the Kennedy
Administration, the CIA conducted political action in Chile that facilitated the
Alliance for Progress, an initiative in Latin America “to promote the growth of
democratic institutions.”174 The CIA, trying to keep its role hidden, provided
166. S. REP. NO. 94-465, at 71 (1975); DAUGHERTY, supra note 5, at 155. This was not the
first time a President tried to eliminate a threat by assassination. S. REP. NO. 94-465, at 19
(1975). In 1960, Eisenhower ordered the CIA to “eliminate” former Prime Minister Lumumba in
the Congo. Id. The Church Committee stated that in the Fall of 1960, two CIA officials were
asked by superiors to assassinate Lumumba. Id. Poisons were sent to the Congo and some
exploratory steps were taken toward gaining access to Lumumba. Id. In early 1961, Lumumba
was killed by Congolese rivals. Id.
167. S. REP. NO. 94-465, at 71–73 (1975).
168. Id. at 85.
169. Id. at 115.
170. Id. at 72; see also RANELAGH, supra note 5, at 386.
171. DAUGHERTY, supra note 5, at 155.
172. As of February 19, 2008, Fidel stepped down as Cuba’s President. Anthony DePalma,
Castro Quits One Role, but May Not Be Done Yet, N.Y. TIMES, Feb. 20, 2008, at A1.
173. Dana Priest, CIA Killed U.S. Citizen in Yemen Missile Strike, WASH. POST, Nov. 8, 2002,
at A1.
174. DAUGHERTY, supra note 5, at 156.
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financial support to the Chilean right-wing party, to the Christian Democrats,
and to the Chilean Radical Party (PR).175 The goal, a variation on the one
attained in Italy, was to keep the Communists in check.176 In that regard, the
Chilean covert action was quite successful initially.177 Following the 1963
elections, the PR was the largest political party in Chile—keeping Socialists
and Communists out of power.178
The CIA’s political action in Chile continued, essentially unchanged
through the Johnson Administration.179 Next, the Nixon Administration
expanded the covert action in Chile after American intelligence reported that
the Soviets were maneuvering to tip the 1970 presidential election their way.180
President Nixon, hoping against hope, sought to prevent the National Party and
the Christian Democrats, both acceptable to him, from splitting their votes and
handing victory to the leftist, Salvador Allende.181 Some quick political action,
overt and covert, was conducted, but by the time of the Chilean election, the
White House’s fears came true: Jorge Alessandri and Radomiro Tomic split
their votes and Allende came out on top.182 Allende, however, was short of a
majority necessary for an outright victory.183
Upon Allende’s victory in the first round, President Nixon decided to do
what he could to undermine him.184 Because the President himself had taken
the initiative, there was no need for extensive consultation or debate within the
government. The NSC and Congress were of marginal importance to Nixon as
he summoned the DCI, Richard Helms, to the White House for orders.185
According to Helms’s notes from the meeting, the President, as a part of a twotrack covert action, wanted the Chilean economy to “scream.”186 To do so,
Nixon expected the CIA to put its best people on the job.187 In response,
175. Id.
176. Id. at 157.
177. Id.
178. Id. at 156.
179. DAUGHERTY, supra note 5, at 171.
180. See id.
181. Id.
182. Juan de Onis, Leftist Leading as Chileans Vote for a President, N.Y. TIMES, Sept. 5,
1970, at A1.
183. Id.
184. U.S. DEP’T. OF STATE, HINCHEY REPORT: CIA ACTIVITIES IN CHILE (Sept. 18, 2000)
[hereinafter HINCHEY REPORT], http://foia.state.gov/Reports/HincheyReport.asp#1 (providing an
overview of the pre-1970 election covert actions—including “sustained propaganda efforts . . .
[and] financial support for major news media against Allende and other Marxists”).
185. HELMS, supra note †, at 404.
186. Id.
187. Id.
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Helms and his CIA, under great pressure, did what they could in two months to
put off Allende’s assumption of power in the second round of the election.188
Track I of the covert action, through propaganda and political action,
attempted to block the Chilean Congress from confirming Allende as
President.189 If possible, the CIA would bribe members of the Chilean
Senate.190 Track II, kept secret from the State Department as well as the
American Ambassador in Santiago, tried to foster a military coup before
Allende’s inauguration.191 The CIA, mixing foreign intelligence activities with
covert action, deepened contacts with three groups opposed to Allende within
the Chilean military.192 Everybody, friend or foe, was scrambling in Chile.
One group, to the CIA’s shame, actually used American weapons provided by
the CIA to kidnap Rene Schneider, an influential army chief of staff opposed
to a coup.193 Schneider died from wounds he took defending himself from the
attackers—but the coup did not materialize.194
Despite Tracks I and II, Allende assumed power by a lopsided vote in the
Chilean Senate.195 Nixon, refusing to be the president who “lost” Chile to the
Communists, continued the efforts against Allende. Again, he ordered the CIA
to “disrupt the Chilean economy.”196 The goal of this disruption was to create
enough unrest and pain so that the Chilean military would step in and oust
Allende.197
Sure enough, by 1973, Chile was in an economic crisis. The middle class
was shrinking, labor strikes in the copper and transportation sectors were
188. Id. at 404–07.
189. HINCHEY REPORT, supra note 184. The CIA sought to prevent Allende—who had not
won an absolute majority—from winning the congressional run-off as the Chilean Constitution
required. Id.
190. S. REP. NO. 94-465, at 229 (1975).
191. See HINCHEY REPORT, supra note 184; see also Peter Kornbluh, Still Hidden: A Full
Record of What the U.S. Did in Chile, WASH. POST, Oct. 24, 1999, at B1.
192. HINCHEY REPORT, supra note 184.
193. Id. All three groups made it clear that a successful coup required Schneider—a loyal
constitutionalist—to be kidnapped. Id.
194. Id. The CIA withdrew its support four days before the planned coup because an internal
assessment concluded the group could not succeed. Id.
195. Id.
196. See STAFF OF S. SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH
RESPECT TO INTELLIGENCE ACTIVITIES, 94TH CONG., 1ST SESS., REPORT ON COVERT ACTION IN
CHILE 1963–1973, at 28 (Comm. Print 1975) [hereinafter COVERT ACTION IN CHILE], available
at http://foia.state.gov/reports/ChurchReport.asp (stating that the United States, using “both overt
and covert” means, “cut off economic aid, denied credits, and made efforts—partially
successful—to enlist the cooperation of international financial institutions and private firms in
tightening the economic ‘squeeze’ on Chile” which “intensified the effect of the economic
measures taken by opposition groups within Chile, particularly the crippling strikes in the mining
and transportation sectors”); see also DAUGHERTY, supra note 5, at 172.
197. DAUGHERTY, supra note 5, at 172.
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crippling the economy,198 and, to the dismay of many in the Chilean military,
Allende was getting cozy with Castro.199 As a result, General Augusto
Pinochet, apparently without any prodding from the CIA, organized a coup
against Allende.200 With tanks in the street, the coup plotters stormed the
presidential palace, and Allende was killed, either by his own hand or by a
bomb that was dropped on him.201 On balance, although the CIA played no
direct role in the coup,202 having no blood on its hands, earlier CIA activities
likely “created the conditions” that led to Allende’s demise.203
The aftermath of the coup was not too good for the Chilean people. Under
Pinochet, the country went through a long period of dictatorship in which
many people disappeared.204 But, unlike what happened in Iran after the CIA
coup there, the end of the Chilean story was a transition to democracy along
with positive U.S.-Chilean relations.205 Pinochet’s assumption of power ended
the American justification for further covert action in Chile.
Overall, between 1963 and 1974, separate from what the White House did
on its own, the NSC approved thirty-three covert actions in Chile.206 Of these,
only eight were briefed to Congress in any way.207 Those were the good old
days for the CIA, before the Church Committee dug into abuses in Chile,
Cuba, and other places. However, before the rules for covert action changed to
198. NUTTER, supra note 5, at 233–34.
199. See MARK M. LOWENTHAL, INTELLIGENCE: FROM SECRETS TO POLICY 114 (2006).
200. HELMS, supra note †, at 407.
201. COVERT ACTION IN CHILE, supra note 196, at 39; HINCHEY REPORT, supra note 184.
202. See COVERT ACTION IN CHILE, supra note 196, at 28; see also HINCHEY REPORT, supra
note 184. The report concluded the CIA “was aware of the coup-plotting by the military, had
ongoing intelligence collection relationships with some plotters, and because the CIA did not
discourage the takeover and had sought to instigate a coup in 1970, probably appeared to condone
it.” Id. Then and now, mixing intelligence assets between foreign intelligence gathering and
covert action goes counter to basic tradecraft.
203. Kissinger Telecons on Chile, in THE KISSINGER TELECONS, NATIONAL SECURITY
ARCHIVE ELECTRONIC BRIEFING BOOK NO. 123 (Peter Kornbluh ed., 2004), available at
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB123/chile.htm. After learning of Allende’s
demise, Nixon exclaimed that “our hand doesn’t show on this one though.” Id. Kissinger
responded that “[w]e didn’t do it. I mean we helped them . . . . created the conditions as great as
possible.” Id.
204. See CAROLS SANTIAGO NINO, RADICAL EVIL ON TRIAL 33–37 (1986); see also Roseann
M. Latore, Coming Out of the Dark: Achieving Justice for Victims of Human Rights Violations by
South American Military Regimes, 25 B.C. INT’L & COMP. L. REV. 419, 423 (2002); Derechos
Chile, Human Rights in Chile—The Legacy, http://www.chipsites.com/derechos/index_eng.html
(last visited Feb. 15, 2009).
205. See Rafael X. Zahralddin-Aravena, Chile and Singapore: the Individual and the
Collective, a Comparison, 12 EMORY INT’L L. REV. 739, 795–800 (1998).
206. COVERT ACTION IN CHILE, supra note 196, at 49.
207. Id.
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address the Iran-Contra scandal, the Carter and Reagan Administrations had
one last hurrah in Afghanistan.
F.
Supporting the Mujahedin in Afghanistan 208
For centuries, Afghanistan was the grand prize in a great game between the
British and the Russians, and even after the leading players changed,
Afghanistan remained important to the Cold War struggle. For the Soviets,
Afghanistan put them one country away from the warm water ports and the
vast petroleum reserves in Iran. To counter the Soviets, President Carter
approved a covert action on July 3, 1979, for “a small scale propaganda
campaign publicizing Soviet activities in Afghanistan; indirect financial
assistance to the insurgents; direct financial assistance to Afghan émigré
groups to support their anti-Soviet, anti-regime activities; non-lethal material
assistance; weapons support; and a range of training and support options.”209
Funded at a low level, this covert action was a means of “harassing”210 the
Marxist government in Kabul and of aiding the Mujahedin, a loose collection
of Afghan groups opposed to Soviet rule.211
As the CIA became involved in Afghanistan, it was no stranger to fighting
pseudo-wars through proxies. During the Vietnam War, for example, the CIA
responded to North Vietnamese operations in southeastern Laos by training
and arming a force of over twenty thousand Laotians.212 Although this was
labeled covert action, not direct military confrontation, the differences between
the two were measured in degrees more than in kind. In charge of CIA
operations in Laos was Bill Colby, the future DCI, who was proud that the CIA
was leaner and meaner than the American military in Vietnam.213 Some CIA
officers, not keeping any distance from the battle, may have actually fought on
the side of their local allies in Laos. The CIA even ran an airline in the region,
Air America, as a covert means of providing assistance to its proxies.214 Years
later, through an approved covert action, the Americans tried to maintain a thin
208. A recent covert action that is just as compelling as Afghan operations was support in the
1980s to Solidarity and other groups opposed to Communist rule in Poland. ANDREW, supra note
138, at 468–69. Eventually, the Iron Curtain dropped from the stage.
209. DAUGHERTY, supra note 5, at 188–89.
210. Id. at 206. This is how Robert Gates described Carter’s objective in Afghanistan,
compared to Reagan’s bigger ambitions. Id.
211. Id. at 189.
212. See William M. Leary, Supporting the “Secret War”: CIA Air Operations in Laos,
1955–1974, STUDIES IN INTELLIGENCE, Winter 1999–2000, at 71, 79, available at
https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-publications/csi-studies/
studies/winter99-00/art7.html.
213. See COLBY, supra note 38, at 191–202.
214. See id.
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and dangerous line between the intelligence function and the military function
in Afghanistan.
A few months after President Carter ordered limited covert action in
Afghanistan, the Soviets, emboldened by America’s trouble in Iran, invaded
Afghanistan to prop up their puppet.215 This invasion radically altered the
American view of the world and, in turn, prompted President Carter to
authorize $100 million in weapons for the Mujahedin.216 Even so, President
Carter insisted that this assistance stay as secret as possible to avoid drawing
the United States and our Pakistani allies into a larger conflict with the Soviets.
After President Carter, President Reagan increased covert action in
Afghanistan. Along with Bill Casey, Reagan’s campaign manager turned DCI,
President Reagan saw the Afghan program “as a way to deeply, if not fatally,
wound the Soviet Union.”217 To that end, the United States channeled more
than a billion dollars in assistance to the Mujahedin between 1986 and 1989,
providing them with training and, later in the conflict, with several hundred
shoulder-held, laser-guided Stinger anti-aircraft missiles.218 The Stingers,
which were lethal in taking down Soviet helicopters, were significant in
turning the situation to the Mujahedin’s advantage.219
Eventually, the Soviets, wounded by a thousand bites, withdrew their
troops from Afghanistan. After years of conflict, the human toll amounted to
fifty thousand dead Soviets, and close to two million dead Afghans.220 Since
the Soviet defeat in Afghanistan was a key factor in the Soviet Union’s
downward spiral, President Reagan, DCI Casey, and other American leaders
looked back on the Afghan covert action with great satisfaction.221 Sometimes
215. DAUGHERTY, supra note 5, at 189.
216. Id.
217. Id. at 206.
218. AHMED RASHID, TALIBAN: MILITANT ISLAM, OIL AND FUNDAMENTALISM IN CENTRAL
ASIA 129 (2000); see also Milton Bearden, Afghanistan, Graveyard of Empires, FOREIGN AFF.,
Nov. 2001, at 17, 20–21; Ahmed Rashid, Accord on Afghanistan Overtaken by Events, THE
INDEPENDENT (London), May 28, 1990, at 6; David Rogers, Aid to Afghan Rebels Wins Approval
of a House Panel, WALL ST. J., Sept. 27, 1990, at A20.
219. ANDREW, supra note 138, at 365–67.
220. See JASON ELLIOT, AN UNEXPECTED LIGHT: TRAVELS IN AFGHANISTAN 30 (2001).
221. MILTON BEARDEN & JAMES RISEN, THE MAIN ENEMY: THE INSIDE STORY OF THE
CIA’S FINAL SHOWDOWN WITH THE KGB 358 (2003) (“In the almost ten years of war, the Soviet
Union admitted to having lost around fifteen thousand troops killed in action, with several
hundred thousand wounded or disabled from disease. General Gromov’s brilliantly staged exit
from Afghanistan would grow rapidly into a national disaster for the USSR . . . . The Soviet
adventure ended as it began, with fantasy and make believe.”). Bearden and Risen went on to
describe the Soviet Union’s fate following its march out of Afghanistan on February 15, 1989:
The troika of Gorbachev, Shevardnadze, and Aleksandr Yakovlev, the old Party
propagandist who’d gone liberal and was now glued to Gorbachev’s side, had in a few
short years undermined the foundation of socialist unity that had been so carefully
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the CIA worked, they said. The Cold War, after all, had started and stopped
with American successes in covert action.
Against the Soviets in Afghanistan, the CIA had worked directly or
indirectly with an array of Islamic fundamentalists, including Osama bin
Laden.222 The CIA, as a part of its covert action, helped build tunnels outside
of Kabul for storing weapons and for protecting Islamic troops.223 Years later,
in a historical twist after 9/11, bin Laden and his forces used those tunnels and
troops against the Americans. And some of those Stingers may still be in bad
hands.
Hindsight, of course, provides the best vision. From a perfect perspective,
it was a mistake for the United States to cut support to the Mujahedin as soon
as they defeated the Soviets.224 The Afghans felt betrayed, and our
“withdrawal created a power vacuum that various clashing factions of
Mujahedin sought to fill, the result of which was ‘banditry and
lawlessness.’”225 In short, the aftermath was civil war, followed by vicious
Taliban rule.
Today, even after American successes against al Qaeda and the Taliban,
even after significant American assistance, Afghanistan remains unstable. The
work there is far from done. American policymakers, whether through open or
covert means, are still inclined to aid their proxies and allies.
G. Escape from Iran
This chronology of covert action ends with a return to Iran. By 1979, after
months of protests and demonstrations, the Shah of Iran was in exile and the
groups opposed to him were in power.226 On November 4, 1979, a group of
reinforced over the previous forty years. Gorbachev and his cohorts had almost flippantly
declared that the USSR should abandon its paternalistic responsibility for the socialist
countries of Eastern Europe. From now on, they’d have to stand on their own. It was
every man for himself . . . and it didn’t take long for things to start coming apart at the
seams.
Id. at 381. “The stage was set for a total [Soviet] breakdown . . . .” Id. at 382.
222. RASHID, supra note 218, at 129–30; see also Rod Nordland & Jeffrey Bartholet, The
Mesmerizer, NEWSWEEK, Sept. 24, 2001, at 44, 45.
223. Nordland & Bartholet, supra note 222, at 45.
224. U.N. Econ. & Soc. Council [ECOSOC], Comm’n on Human Rights, Final Report on the
Situation of Human Rights in Afghanistan, U.N. Doc. E/CN.4/1996/64 (Feb. 27, 1996) (prepared
by Choong-Hyun Paik) (describing the humanitarian plight of the Afghan civilians after the
Soviet withdrawal); see also U.N. Econ. & Soc. Council [ECOSOC], Comm’n on Human Rights,
Report on the Situation of Human Rights in Afghanistan, U.N. Doc. E/CN.4/1985/21 (Feb. 19,
1985) (prepared by the Special Rapporteur, Felix Ermacora) (detailing political, economic, and
human rights in Afghanistan after the Soviet withdrawal).
225. Nagan & Hammer, supra note 79, at 965 (citing ELLIOT, supra note 220, at 22).
226. See generally MARK BOWDEN, GUESTS OF THE AYATOLLAH (2006) (describing the
takeover and the 444 days of captivity for most of the hostages).
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militants took over the United States embassy in Tehran.227 Radical clerics,
including Ayatollah Khomeini, supported the takeover as a part of their
strategy for consolidating power after the revolution.228 With Khomeini’s
blessing, they held sixty-three diplomats and three additional Americans
hostage.229
During the takeover, six would-be hostages fled to the Canadian
embassy.230 For their safety, the Canadians hid them while the American and
Canadian governments, in secret, settled on a plan to extract them from Iran.231
The Canadians, however, made their cooperation contingent on keeping the
American Congress in the dark.232 Notice to Congress, the Canadians figured,
greatly increased the chances that the rescue would leak to the public,
something dangerous not only to the Americans but to all the personnel in the
Canadian embassy.233
President Carter, without any apparent reservation, accepted the Canadian
condition.234 To carry out the mission, he called on the CIA.235 With
presidential authorization, Antonio Mendez, an expert in disguises at the CIA,
took charge of the covert action.236 For anybody, sneaking six Americans out
of revolutionary Iran was not easy. As Mendez later recounted, “[w]e needed
to find a way to rescue six Americans with no intelligence background, and we
would have to coordinate a sensitive plan of action with another US
government department and with senior policymakers in the US and Canadian
administrations.”237 Indeed, a full account of the Iranian covert action was not
disclosed until the Agency’s fiftieth anniversary in 1997.238
227. Id.
228. Id. at 14.
229. Id. at 198–99. After two weeks of captivity, thirteen of the hostages, mainly African
Americans and women, were released. Charles G. Cogan, Desert One and Its Disorders, 67 J.
MIL. HIST. 201, 208 (2003).
230. Canadian Caper Helps Americans Escape Tehran, (CBC television broadcast Jan. 28,
1980), available at http://archives.cbc.ca/on_this_day/01/28/.
231. Id.
232. See Oversight Legislation, 1987: Hearings on S. 1721 and S. 1818 Before the Senate
Select Comm. on Intelligence, 100th Cong. 209 (1988) [hereinafter Hearings] (testimony of
Secretary of Defense Frank Carlucci, former DDCI under Stansfield Turner) (“[T]he Canadians
indicated that if the Congress was to be informed, they wouldn’t cooperate.”). Senator Jim
McClure also stated that “[t]he Canadians said they would not help unless the administration
promised not to notify Congress.” See Jim McClure, Letter to the Editor, A 48-Hour Rule For
Covert Operations? No, WASH. POST, Sept. 26, 1988, at A14.
233. Hearings, supra note 232.
234. See PRADOS, supra note 5, at 352.
235. Id. at 353.
236. See Mendez, supra note 24, at 2.
237. Id.
238. Id. at 2 (providing a thorough discussion of the operational planning).
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The rescue required three months of planning.239 First, the CIA obtained
Canadian passports for the six Americans and forged Iranian visas for them.240
Next, Mendez devised “a cover so exotic that no one would imagine it was
being used for operational purposes.”241 Mendez’s plan was to disguise
himself and his six compatriots as a Hollywood production team that had been
in Iran scouting a movie site.242 To be as authentic as possible, the CIA, with
the help of a makeup consultant called “Jerome Calloway,” set up a motion
picture company,243 leased a production suite,244 took out full-page ads in key
trade papers,245 and purchased “a script with ‘sci-fi,’ Middle Eastern, and
mythological elements.”246 With full attention to detail, Mendez arranged
appropriate “pocket litter” for the six Americans.247 Mendez, who himself
played the production manager, carried a “portfolio [that] had everything
needed to sell even the most sophisticated investment banker on our movie.”248
The “backstopping” all arranged, Mendez flew to Tehran.249 There, in
secret, he met the six at the Canadian embassy, explained the plan, and
described how to be “more ‘Hollywood.’”250 The transformations were
dramatic.251 The otherwise conservative Bob Anders, for example, took on a
new persona:
Now, his snow-white hair was a “mod” blow dry. He was wearing tight
trousers with no pockets and a blue silk shirt unbuttoned down the front with
239. Id. at 14.
240. See id. at 4, 9.
241. Mendez, supra note 24, at 4. Such an approach, although quite creative, was risky,
because “legends hold up best when their details closely follow the actual experience or
background of the user . . . [and] should be sufficiently dull so that [they do] not pique undue
interest.” Id. That was not the case here.
242. See id. at 4–6. Production companies from Hollywood often “travel around the world
looking for the right street or hillside to shoot a particular scene.” Id. at 5. A production team
usually consists of “a production manager, a cameraman, an art director, a transportation
manager, a script consultant, an associate producer, a business manager, and a director.” Id. at 4.
243. Id. at 5. The production company was appropriately titled “Studio Six Productions.” Id.
244. Id. at 5–6. CIA contractors established Studio Six Productions in an old Columbia
Studios lot in Hollywood. Id. Michael Douglas had just used this lot to produce the film The
China Syndrome. Id. at 5–6.
245. Id. Full-page ads were taken out in Variety and The Hollywood Reporter. Id. at 6.
246. Mendez, supra note 24, at 5–6. “The script was based on an award-winning sci-fi novel
with a complicated story line” and themes “about the glory of Islam.” Id. Calloway and Mendez
chose the title “Argo” because it was the punch line of a profane knock-knock joke familiar to the
group and because it had origins in mythology. Id.
247. Id. at 7. This included business cards, briefing papers, airline tickets, lapel pins, baggage
stickers, and matchbooks from the Brown Derby Restaurant in Hollywood. Id.
248. Id. at 8.
249. Id. at 10.
250. Id. at 12–13.
251. Mendez, supra note 24, at 12–13.
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his chest hair cradling a gold chain and medallion. With his topcoat resting
across his shoulders like a cape, he strolled around the room with the flair of a
252
Hollywood dandy.
The briefings complete, Mendez and the group were ready to leave.253
Through an inside contact at the airport, they were provided with forged
embarkation cards which made it seem as if they all had entered Iran as part of
the production team.254 Though “traveling a bit light for Hollywood types,”
they proceeded through the emigration checkpoint, boarded the flight, and flew
away from Iran.255 As Mendez describes, reminiscent of Kermit Roosevelt’s
earlier glory in Iran, the operation was “[a]s [s]mooth as [s]ilk.”256
The Carter Administration did not consider informing Congress of the
covert action—even in closed session—until the Americans returned home.257
Even then, the Carter Administration hesitated.258 For the safety of the other
Americans still hostage in Tehran, the Carter Administration did not want the
rescue operation to go public.259 By accepting the Canadian condition for the
rescue mission, President Carter arguably violated the express terms of the
Hughes-Ryan Act,260 an important piece of legislation on covert action. Here,
the Iranian rescue mission is a final illustration of the tensions between the
President’s power to get things done and Congress’s power to be informed of
matters that could take the country to war.261 Back and forth, sometimes
policy stretches the law, and sometimes the law stretches policy.
252. Id. at 13.
253. Id. at 13–14.
254. Id. at 12.
255. Id. at 14–15.
256. Mendez, supra note 24, at 14. In fact, one airline manager approached Mendez to ask
why he had not booked another airline—which would have arranged for red-carpet treatment. Id.
257. See Hearings, supra note 232, at 220. Then-Secretary of Defense Frank Carlucci stated,
“Now we did inform after the fact.” Id. He noted however, that “I was one of the decisionmakers [to withhold notification to Congress] and I would not have [given prior notice], in
retrospect. Because I think those people would still be there had we not agreed to withhold
information.” Id.
258. See PRADOS, supra note 5, at 353–54.
259. See Hearings, supra note 232, at 220.
260. See Hughes-Ryan Amendment to the 1961 Foreign Assistance Act, Pub. L. No. 93–559,
sec. 32, § 662, 88 Stat. 1795, 1804 (1974) (codified as amended at 22 U.S.C. § 2422 (1976))
(requiring “timely” notice to the appropriate committees of Congress), repealed by Intelligence
Authorization Act, Fiscal Year 1991, Pub. L. No. 102–88, 103 Stat. 429.
261. For example, as one commentator notes:
Foreign powers or operatives, knowing that participation with the United States in a
special activity requires rigid congressional notification procedures, may well refuse to
extend their assistance. In this way, rigid notification requirements interfere with the
President’s ability to conduct foreign affairs, since they deny him the ability to receive
such assistance.
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II. LEGAL FRAMEWORK
Although the historical frame to this Article started after World War II, it
remains true that Presidents as far back as George Washington conducted
covert action.262 Throughout American history, the legal justifications for
covert action have varied. Under a separation-of-powers analysis, three broad
periods to American covert action can thus be identified.
First, before the National Security Act of 1947,263 Presidents conducted
covert actions based on Article II powers while Congress deferred.264 And the
courts were nowhere close to the action.265 Although there is nothing explicit
about covert action in the Constitution, Presidents inferred authority from such
places as the Vesting Clause, the Commander-in-Chief Clause, the Treaty
Clause, and from an implied executive privilege.266 As a result, covert actions
David Everett Colton, Speaking Truth to Power: Intelligence Oversight in an Imperfect World,
137 U. PA. L. REV. 571, 601 (1988) (citation omitted).
262. See ANDREW, supra note 138, at 6–12.
263. National Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495 (codified as amended in
scattered sections of 10 & 50 U.S.C.).
264. See BRUCE D. BERKOWITZ & ALLEN E. GOODMAN, STRATEGIC INTELLIGENCE FOR
AMERICAN NATIONAL SECURITY 25–26 (3d ed. 1989); CECIL V. CRABB, JR. & PAT M. HOLT,
INVITATION TO STRUGGLE: CONGRESS, THE PRESIDENT, AND FOREIGN POLICY 169–91 (1989);
DAUGHERTY, supra note 5, at 91–92; LOCH K. JOHNSON, AMERICA’S SECRET POWER: THE CIA
IN A DEMOCRATIC SOCIETY 8–9 (1989). While these scholars generally agree that Congress
rarely intruded into covert actions and other intelligence matters before the Cold War, recent
scholarship challenges the consensus that Congress was uninvolved during this period. See
DAVID M. BARRETT, THE CIA AND CONGRESS: THE UNTOLD STORY FROM TRUMAN TO
KENNEDY (2005).
265. See William S. Cohen, Congressional Oversight of Covert Actions: The Public’s Stake in
the Forty-Eight Hour Rule, 12 HARV. J.L. & PUB. POL’Y 285, 291 (1989) (“[T]he courts have
refused to draw hard and fast lines between the prerogatives of the two branches in this area.”).
266. U.S. CONST. art. II, §§ 1, 2 (“[T]he executive Power shall be vested in a President of the
United States of America. . . . The President shall be Commander in Chief of the Army and Navy
of the United States, and . . . He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties . . . .”). Executive privilege refers to the President’s ability to keep
internal debates secret and is often defended as important to protect national security and
diplomacy. See United States v. Nixon, 418 U.S. 683, 707–08 (1974) (stating that the President
has a constitutionally based presumptive privilege to withhold certain information relating to
confidential conversations and correspondence necessary to protect the public interest). The
Constitution does not mention such authority, and the Supreme Court did not expressly consider
the constitutionality and scope of the executive privilege until 1974. Id.; see also DANIEL N.
HOFFMAN, GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN
CONSTITUTIONAL CONTROLS 4 (1981) (explaining that the Framers were very aware of, and
relied on the vitality of, the executive privilege).
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during the first period were subject to very little congressional or judicial
oversight, if any.267
During the second period, starting with Congress’s enactment of the
National Security Act of 1947, it was argued—especially by those who did not
completely accept inherent powers—that Congress had given the President
authority to conduct covert action. This argument rested on the “fifth
function” to the CIA’s charter,268 on the authority for secret transfers of funds
laid out in the Central Intelligence Agency Act of 1949,269 and on
appropriations from Congress.270 Not everyone agreed, however, that
Congress had given the President such authority.271 The wording to the CIA’s
267. See BARRY M. BLECHMAN, THE POLITICS OF NATIONAL SECURITY: CONGRESS AND
U.S. DEFENSE POLICY 139 (1990). This period has been referred to as the era of “Congressional
‘undersight.’” ). Id.
268. National Security Act of 1947, Pub. L. No. 80-253, § 102(d)(5), 61 Stat. 495, 498
(codified as amended at 50 U.S.C. § 403-3(d)(5) (2000)). A fifth clause of the original NSA of
1947 called for the CIA “to perform such other functions and duties related to intelligence
affecting the national security as the [NSC] may from time to time direct.” Id.
269. Central Intelligence Agency Act of 1949, Pub. L. No. 81–110, 63 Stat. 208 (codified as
amended at 50 U.S.C. §§ 403a–403w (2000 & Supp. V 2001–2006)). Specifically, 50 U.S.C. §
403f(a) (2000) provides that:
In the performance of its functions, the Central Intelligence Agency is authorized to—(1)
[t]ransfer to and receive from other Government agencies such sums as may be approved
by the Office of Management and Budget . . . and any other Government agency is
authorized to transfer to or receive from the Agency such sums without regard to any
provisions of law limiting or prohibiting transfers between appropriations. Sums
transferred to the Agency in accordance with this paragraph may be expended for the
purposes and under the authority of sections 403a to 403s of this title without regard to
limitations of appropriations from which transferred . . . .
Id. (emphasis added). 50 U.S.C. § 403j(b) (2000) further provides that:
The sums made available to the Agency may be expended without regard to the
provisions of law and regulations relating to the expenditure of Government funds; and
for objects of a confidential, extraordinary, or emergency nature, such expenditures to be
accounted for solely on the certificate of the Director and every such certificate shall be
deemed a sufficient voucher for the amount therein certified.
Id.
270. See CLARK CLIFFORD WITH RICHARD HOLBROOKE, COUNSEL TO THE PRESIDENT, 169–
70 (1991) (stating that the fifth function was intended to be a “catchall” for future contingencies,
including covert actions). Clark Clifford, one of the principal drafters of the National Security
Act of 1947, testified that, “We did not mention [covert actions] by name because we felt it would
be injurious to our national interest to advertise the fact that we might engage in such activities.”
Id. at 170.
271. See Robert L. Borosage, Para-Legal Authority and Its Perils, LAW & CONTEMP. PROBS.,
Summer 1976, at 166, 175–77 (“The language of the fifth function clause itself, as well as the
entire public legislative record[,] may be taken at least as easily against, as for, the notion that
Congress intended to authorize covert action in 1947.”). Borosage noted further that “[t]he first
director of the CIA, Admiral Roscoe Hillenkoetter[,] stated he had no interest in covert action,
and intended the CIA to be purely an ‘intelligence outfit.’” Id. at 177. For more commentary that
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charter and the legislative history were shrouded in some ambiguity.272 And
the Executive offered few details in the requests for appropriations.273
Whether or not statutory authority existed for covert action, Congress was not
too involved in the second period, giving broad deference to the President’s
prerogative on intelligence activities.
During the third period, starting with the Hughes-Ryan Amendment,274
covert action received explicit statutory support. Yet, because of abuses that
had been revealed in the covert-action process, the relationship between the
two elected branches changed. The third period was thus quite different from
the first two. No matter from which branch, those around the President
became less willing to trust his intelligence decisions. Congress got more
involved.
This Article, to put a modest frame to best use, presents legal references to
the second and third periods of American covert action. For those interested in
the first period, that is, everything from the Declaration of Independence
through World War II, the Constitution stands as a basic reference. In the third
period, the long-term trend on covert action is toward more participation from
Congress and more transparency to the public.
A.
The National Security Act of 1947
The National Security Act of 1947 established the CIA and the NSC within
the Executive Office of the President.275 The formal members of the NSC
include the President as chairman, the Vice President, the Secretary of State,
and the Secretary of Defense.276 In practice, many other officials participate in
NSC meetings, and the NSC has a large staff that serves the President through
the National Security Advisor.277 From the beginning, the 1947 Act cast the
CIA as an executive instrument that reported straight to the President or the
NSC.278 Many people, as noted, interpreted the Act as authority for covert
actions at the President’s discretion.279
covert action was not raised during enactment of the 1947 Act, see RANELAGH, supra note 5, at
104–11; THOMAS F. TROY, DONOVAN AND THE CIA: A HISTORY OF THE ESTABLISHMENT OF
THE CENTRAL INTELLIGENCE AGENCY 377–410 (1981).
272. See PRADOS, supra note 5, at 20–21; WEINER, supra note 5, at 327–28.
273. See PRADOS, supra note 5, at 20–21; WEINER, supra note 5, at 327–28.
274. Hughes-Ryan Amendment to the 1961 Foreign Assistance Act, Pub. L. No. 93–559, sec.
32, § 662, 88 Stat. 1795, 1804 (1974) (codified as amended at 22 U.S.C. § 2422 (1976)), repealed
by Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102–88, 103 Stat. 429.
275. 50 U.S.C. §§ 403-1, 403-3 (2000).
276. Id. § 402 (a).
277. Id. § 402 (c).
278. Pub. L. No. 80-253, § 102(a), 61 Stat. 495, 497; see also Cline, supra note 21, at 359
(stating that the CIA, as “an executive instrument of the President . . . is implicitly empowered to
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After the 1947 Act passed, not many legislators expressed an interest in or
requested any briefings about covert action.280 Congress’s lack of interest was
accentuated by a bipartisan consensus during the Cold War that covert action
was largely a matter of presidential discretion.281 In view of the Soviet
menace, covert actions during this period, whether in Italy or Iran, sought to
prevent the spread of Communism.282 Congress, with faith in the Executive,
assumed the CIA’s activities were conducted in a manner that maximized
benefits and minimized risks.283
This period of covert action became known as the age of “plausible
deniability.”284 Often, the President’s approval of covert action was implied,
not explicit.285 This lack of explicitness, especially on assassination, created
political buffers between the President and those who conducted the covert
action on his behalf. If a particular covert action led to a flap, the officers took
the blame instead of the President. For example, President Kennedy is said to
have remarked, after the Bay of Pigs debacle, that in other systems he would
be resigning, not the Director of Central Intelligence.286 Further, given gaps in
record keeping, Kennedy did not leave any fingerprints on assassination plots
against Castro.
carry out any missions that come within the authority of the chief executive of the United States”
under the NSA of 1947).
279. REISMAN & BAKER, supra note 72, at 118.
280. LOCH K. JOHNSON, BOMBS, BUGS, DRUGS, AND THUGS: INTELLIGENCE AND
AMERICA’S QUEST FOR SECURITY 202 (2000) (quoting John Stennis, who, after being offered a
CIA briefing on a covert action, responded “[n]o, no, my boy, don’t tell me. Just go ahead and do
it—but I don’t want to know!”); FRANK J. SMIST, CONGRESS OVERSEES THE UNITED STATES
INTELLIGENCE COMMUNITY 5 (2d ed. 1994) (quoting Clark Clifford, advisor to President
Truman, who commented that “Congress chose not to be involved and preferred to be
uninformed”). Similarly, CIA general counsel Walter Pforzheimer stated that “[w]e allowed
Congress to set the pace. We briefed in whatever detail they wanted. But one of the problems
was you couldn’t get Congress to get interested.” Id.; see also Gregory F. Treverton,
Intelligence: Welcome to the American Government, in A QUESTION OF BALANCE: THE
PRESIDENT, THE CONGRESS, AND FOREIGN POLICY 74 (Thomas E. Mann ed., 1990).
281. DAUGHERTY, supra note 5, at 91–92.
282. Id. at 92.
283. Id.
284. Id. The doctrine of “plausible deniability” hinges on restricted congressional notice, or
no notice at all, allowing the President, when necessary, to disclaim any knowledge of a covert
action. See M.E. Bowman, Secrets in Plain View: Covert Action the U.S. Way, in 72
INTERNATIONAL LAW STUDIES: THE LAW OF MILITARY OPERATIONS 1, 9 (Michael N. Schmitt
ed., 1998) (citation omitted) (stating that the goal is to conduct activities in secret and avoid the
disclosure of United States involvement).
285. See PRADOS, supra note 5, at 108–12, 193.
286. DALLEK, supra note 136, at 365–66 (“‘Under a parliamentary system of government it is
I who would be leaving office,’ Kennedy told Dulles. ‘But under our system it is you who must
go.’”). After a six-month secret review by the Agency’s Inspector General Lyman Kirkpatrick,
Kennedy’s conviction that both Dulles and Bissell would have to resign was confirmed. Id.
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The Hughes-Ryan Amendment
Congress increased its interest in oversight because several foreign policy
and intelligence blunders eroded its trust in the Executive. The mishandling of
the Vietnam War, compounded by the CIA’s domestic spying,287 excesses in
Chile,288 the Watergate scandal,289 and covert intervention in the Angolan Civil
War,290 among other issues in the 1960s and 1970s, prompted Congress to take
on a more active role on covert action.291
In 1974, the Hughes-Ryan Amendment to the Foreign Assistance Act of
1961 was passed.292 Hughes-Ryan was intended as the first of many measures
to rein in the CIA.293 Hughes-Ryan prohibited funds from being expended on
a CIA covert action unless the President: (1) found that the operation was
“important to the national security of the United States” and (2) provided a
finding “to the appropriate committees of the Congress.”294 The finding—
usually a written document signed by the President describing a contemplated
287. THE INTELLIGENCE COMMUNITY: HISTORY, ORGANIZATION, AND ISSUES 622 (Tyrus G.
Fain et al. eds., 1977) (stating that on January 15, 1975, DCI William Colby testified to the
Senate Appropriations Committee that, from 1962 to 1972, under operation CHAOS, “officers of
the CIA had spied on American journalists and political dissidents, placed informants within
domestic protest groups, opened the mail of U.S. citizens, and assembled secret files on more
than 10,000 American citizens”).
288. See COVERT ACTION IN CHILE, supra note 196, at 144–209 (1975); see also RANELAGH,
supra note 5, at 513–20.
289. See COLBY, supra note 38, at 338; see also RANELAGH, supra note 5, at 520–30
(explaining that although the Watergate investigations did not directly implicate the CIA, Howard
Hunt, a former CIA employee, was one of the burglars, and the Nixon Administration did
attempt, through a trumped up notion of national security, to use the CIA to take the FBI off the
investigative trail).
290. See HENRY F. JACKSON, FROM THE CONGO TO SOWETO: U.S. FOREIGN POLICY
TOWARD AFRICA SINCE 1960, at 65–74 (1982).
291. See Elizabeth Rindskopf, Intelligence Oversight in a Democracy, 11 HOUS. J. INT’L L.
21, 23 (1988) (“In particular, the involvement of the CIA in various covert activities received
considerable attention. Congressional reaction was an attempt to assert control.”).
292. Hughes-Ryan Amendment to the 1961 Foreign Assistance Act, Pub. L. No. 93–559, sec.
32, § 662, 88 Stat. 1795, 1804 (1974) (codified as amended at 22 U.S.C. § 2422 (1976)), repealed
by Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102–88, 103 Stat. 429.
293. See Rindskopf, supra note 291, at 23.
294. 22 U.S.C. § 2422 (1976). The Hughes-Ryan Amendment states in pertinent part:
No funds appropriated under the authority of this or any other Act may be expended by or
on behalf of the Central Intelligence Agency for operations in foreign countries, other
than activities intended solely for obtaining necessary intelligence, unless and until the
President finds that each such operation is important to the national security of the United
States and reports, in a timely fashion, a description and scope of such operation to the
appropriate committees of the Congress, including the Committee on Foreign Relations of
the United States Senate and the Committee on Foreign Affairs of the United States
House of Representatives.
Id. (emphasis added).
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action and listing all governmental agencies and third parties to be
involved295—was apparently to be reported before implementation of the
covert action.296 Nothing in Hughes-Ryan said, however, that findings had to
be in writing.
Congress, by receiving notice of covert actions, could try to block an
action it deemed inappropriate by denying funds to carry out the action.297
Through Hughes-Ryan, Congress heightened its power of the purse. Those
supporting presidential prerogative interpreted the Hughes-Ryan phrase, “in a
timely fashion,” to allow the President to give notice after a covert action had
started.298 The counter-argument from those siding with Congress was that for
notice to be “timely” it had to be prior to the covert action.299 The sequence of
notice and action, of course, was significant to the scope of oversight. In a
basic sense, Congress could not cut off funds for something that already
happened.
All in all, Hughes-Ryan added controls to covert action, but it did not
provide total clarity in this process. Of particular concern to the CIA was the
breadth of activities that required a finding because Hughes-Ryan avoided the
term “covert action.” Rather, any “operations in foreign countries” that were
not “intended solely for obtaining necessary intelligence” were drawn into the
statute’s provisions.300 By the plain language, even the CIA’s routine support
to other American agencies required a finding. If the statute had been drafted
better, it would have provided a definition of “operations.” So the ambiguity
about what required a finding was left to executive-congressional dialogue and
to a resolution, years later, in a different statute.301
Hughes-Ryan ended plausible deniability, that is, the President’s ability to
deny knowledge of a covert action.302 Further, Hughes-Ryan, by incorporating
the phrase “to the appropriate committees of the Congress,” suggested that any
congressional committee with jurisdiction over some aspect of intelligence
activities could request a finding.303 Back then, before congressional oversight
295. See 50 U.S.C. § 413b(a) (2000) (defining a Presidential finding).
296. See 22 U.S.C. § 2422 (1976).
297. DAUGHERTY, supra note 5, at 94–95 (noting that the reporting requirement gave
members of Congress a meaningful opportunity to consult with the President about a covert
action (or to cut off funds) before it was too late).
298. Id.
299. See id. at 97.
300. 22 U.S.C. § 2422 (1976).
301. Intelligence Authorization Act for Fiscal Year 1981, Pub. L. No. 96-450, 94 Stat. 1975
(1980) (current version as amended at 50 U.S.C. § 413 (2000)).
302. S. REP. NO. 94-465, at 58 (1975) (stating that “[t]he concept of plausible denial . . . is
dead” and explaining that the clear purpose of Hughes-Ryan was to ensure accountability for
covert operations).
303. See 22 U.S.C. § 2422 (1976); see also BERKOWITZ & GOODMAN, supra note 264, at 26
(stating that “[a]t its peak” the Hughes-Ryan Amendment required the reporting of significant
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was consolidated into fewer committees, Hughes-Ryan called for the President
to report a finding, arguably, to eight different congressional committees.304
For the first time, “plausible deniability” gave way to “executive
accountability.”305 And Congress took a big step into the arena, marking a new
era in covert action.
C. The Church Committee Report
Soon after Congress proposed Hughes-Ryan, it created two legislative
bodies to examine alleged wrongdoing by American intelligence agencies.
Politics played its usual role as Democrats in Congress asserted themselves
against a Republican President. In 1975, the Senate created the Select
Committee to Study Governmental Operations with respect to Intelligence
Activities, known as the “Church Committee” after its chairman Senator Frank
Church from Idaho.306 That same year, the House created the Select
Committee on Intelligence, known as the “Pike Committee” after its chairman
Congressman Otis Pike from New York.307 In the end the Church Committee
was far more influential than the Pike Committee.
Around the country, the mood was against covert action of any sort. The
Church Committee, in its final report in 1976, stated that it had given very
serious thought to “proposing a total ban on all forms of covert action.”308 The
pendulum did not swing that far, however. Instead, the Committee concluded
that covert action should be available for “grave, unforeseen threat[s] to United
covert operations to several congressional committees comprising over 250 members and their
senior staffs); William E. Conner, Reforming Oversight of Covert Actions After the Iran-Contra
Affair: A Legislative History of the Intelligence Authorization Act for FY 1991, 32 VA. J. INT’L L.
871, 887–88 & n.63 (1992) (commenting on the “alarming” number of people who were cleared
for classified information after Hughes-Ryan was adopted). In reality, however, those who were
privy to classified details formed a much shorter list. See SMIST, supra note 280, at 119 (claiming
that although Hughes-Ryan, in theory, provided access to 57 senators, 143 representatives, and
their staff, “very few members or staff were informed.”).
304. See DAUGHERTY, supra note 5, at 94. These committees included the Appropriations,
Armed Services, and Foreign Affairs Committees in both the House and Senate, as well as the
House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on
Intelligence (SSCI). Id.
305. See id. Senator Hughes and many of his colleagues viewed the Amendment as the
beginning of a reform process. Id. Once Congress obtained information about covert actions,
Hughes believed Congress could then determine what controls to impose on the relevant
agencies. 120 CONG. REC. 33,488–91 (1974) ; see also S. REP. NO. 94-465, at 58 (1975); see
generally Americo R. Cinquegrana, Dancing in the Dark: Accepting the Invitation to Struggle in
the Context of “Covert Action,” the Iran-Contra Affair and the Intelligence Oversight Process,
11 HOUS. J. INT’L L. 177, 182–87 (1988) (tracing arguments by Senators and Congressmen on
various forms of improved oversight).
306. S. Res. 21, 94th Cong., 121 CONG. REC. 1416–33 (1975).
307. H.R. Res. 591, 94th Cong., 121 CONG. REC. 23,241–56 (1975).
308. S. REP. NO. 94-465, at 159 (1975).
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States national security.”309 Even so, the Committee qualified its conclusion
by explaining that covert actions: (1) must be construed as “an exceptional act”
to be used only “when overt means will not suffice”; (2) must not be used as “a
vehicle for clandestinely undertaking actions incompatible with American
principles”; (3) must be established “on a careful and systematic analysis of a
given situation” including the “consequence of an attempt to intervene”; and
(4) must be initiated only after “the appropriate oversight committee[s]
[are] . . . informed of all significant covert operations . . . .”310 Congress, in so
many ways, strived to prevent a repeat of the Bay of Pigs and other failures
from the era of plausible denial.
As a result of the Church Committee’s findings and a weakened presidency
after Watergate, the Executive Branch scaled back on covert action.311 Hence,
the Ford Administration, atoning for other presidential sins or the perceptions
of prior abuses, pursued very few covert actions.312 In all, the Church
Committee, combined with Hughes-Ryan, paved the way for stronger
congressional checks.313 As a result, the two prior models of covert action, one
before the 1947 National Security Act and the other after, became relics of the
past.
D. The Intelligence Authorization Act of 1979
Following the Church Committee and the Pike Committee, Congress
enacted the Intelligence Authorization Act of 1979.314 This Act removed much
of the intelligence community’s fiscal autonomy.315 In effect, off-the-books
practices ceased and intelligence agencies were placed on the same annual
authorization and appropriations terms as other executive agencies.316 By
reinforcing its power of the purse,317 Congress, through annual authorization,
got into the specifics of how the intelligence community spent its funds.
Congress struggled toward supremacy over the President on intelligence
activities. If Congress disapproved of a covert action, it could cut off funding,
309. Id.
310. See id. at 159–61.
311. DAUGHERTY, supra note 5, at 178.
312. Id.
313. See Peter Raven-Hansen & William C. Banks, Targeted Killing and Assassination: The
U.S. Legal Framework, 37 U. RICH L. REV. 667, 710–11 (2003).
314. Intelligence and Intelligence-Related Activities Authorization Act for Fiscal Year 1979,
Pub. L. No. 95-370, 92 Stat. 626 (1978).
315. See Marshall Silverberg, The Separation of Powers and Control of the CIA’s Covert
Operations, 68 TEX. L. REV. 575, 596 (1990).
316. See AMERICAN BAR ASSOCIATION, TASK FORCE ON INTELLIGENCE AND
COUNTERINTELLIGENCE, THE WORKING GROUP ON INTELLIGENCE OVERSIGHT AND
ACCOUNTABILITY OF THE U.S. INTELLIGENCE AGENCIES— AN EVALUATION 8 (1985).
317. See supra Part II.B.
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which would halt current operations and prevent new ones from beginning.318
Although aggressive, this assertion of congressional power was less underhanded than the perennial ploy of leaking classified details about operations to
the media.
E.
The Intelligence Oversight Act of 1980
As the facts and findings of the Church Committee settled into public
awareness, Congress started to tinker with the procedures on covert action.
Sensing the new mood concerning covert action, President Ford—and then
President Carter—put into effect many reforms through executive order.319
Thus, executive self-regulating took some of the steam out of statutory
reforms.
By the end of the 1970s, the political climate had changed. As noted,
Islamic extremists had toppled the Shah of Iran, a staunch American ally.320
The new Iranian regime, led by Ayatollah Khomeini, had taken American
diplomats hostage.321 And the Soviet Union, taking advantage of America’s
distraction, had invaded Afghanistan.322 These setbacks, along with others on
the international scene, cried out for a reassertion of American power. One
aspect to that power was covert action, a return of Cold War ghosts to the
scene.
So Congress, rather than pass a comprehensive charter for the CIA, scaled
back. Congress limited itself to a few changes in Hughes-Ryan by way of the
Intelligence Oversight Act of 1980.323 That Act consolidated the House
Permanent Select Committee on Intelligence (HPSCI) and the Senate Select
Committee on Intelligence (SSCI) as the oversight committees for the
intelligence community.324 By reducing the relevant committees from eight to
two, Congress streamlined the notification process and increased the chances
of maintaining secrecy on covert actions.
The new Act codified reporting and oversight procedures, many of which
the intelligence community had already adopted on its own. In particular,
318. See William S. Cohen, Congressional Oversight of Covert Actions, 2 INT’L J.
INTELLIGENCE & COUNTERINTELLIGENCE 155, 157 (1988); Robert R. Simmons, Intelligence
Policy and Performance in Reagan’s First Term: A Good Record or Bad?, 4 INT’L J.
INTELLIGENCE & COUNTERINTELLIGENCE 1, 15 (1990).
319. See Exec. Order No. 11,905, 3 C.F.R. 90 (1977), reprinted in 50 U.S.C. § 401 (Supp. I
1977); Exec. Order No. 12,036, 3 C.F.R. 112 (1978), reprinted in 50 U.S.C. § 401 (Supp. II
1978).
320. BOWDEN, supra note 226, at 163–67.
321. Id.
322. Id. at 286.
323. Intelligence Authorization Act for Fiscal Year 1981, Pub. L. No. 96-450, sec. 407(a), 94
Stat. 1975 (1980) (current version as amended at 50 U.S.C. § 413 (2000)).
324. Id. at sec. 407(b)(1), § 501(a)(1).
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section (a) of the new Act required the DCI and “the heads of all departments,
agencies, and other entities of the United States involved in intelligence
activities”325 to keep the intelligence committees “fully and currently informed
of all intelligence activities.”326 Of particular importance, the new Act spoke
of “prior notice,” not specifying whether notification should be oral, written, or
both.327 Unlike Hughes-Ryan, the Intelligence Oversight Act of 1980 covered
more than the CIA.
The new Act clarified that keeping the intelligence committees fully and
currently informed of all intelligence activities did not entail “approval of the
intelligence committees as a condition precedent” to undertaking the
activity.328 Therefore, for some intelligence activities, after-the-fact notice
seemed acceptable. The new Act also required the DCI and the intelligence
heads to furnish any information necessary for the committees to carry out
their responsibilities and to report “any illegal intelligence activity or
significant intelligence failure” in a “timely fashion.”329
The new Act, creating as much confusion as it resolved, added section (b)
to cover cases in which prior notice had not been given under section (a).
Under section (b), the reasons for not providing prior notice needed to be
Most important, section (b) stated that the intelligence
disclosed.330
committees needed to be fully informed “in a timely fashion of intelligence
operations in foreign countries, other than activities intended solely for
As with Hughes-Ryan, the term
obtaining necessary intelligence.”331
“operations” was not defined, and Congress did not attempt to define anything
called “covert action.” Presumably, the CIA needed to notify Congress of a
covert action under either section (a) or (b).332
When prior notice was given, the new Act allowed the President to limit
the number of people in Congress who received notice of a covert action.
Under “extraordinary circumstances affecting vital interests of the United
States,” the President could restrict notification to “the chairman and ranking
minority members of the intelligence committees, the Speaker and minority
leader of the House of Representatives, and the majority and minority leaders
of the Senate.”333 Added up, this was limited notice to eight people, rather
than to full committees.
325.
326.
327.
328.
329.
330.
331.
332.
333.
Id. § 501(a).
Id.
Id.
Intelligence Authorization Act for Fiscal Year 1981, sec. 407(b)(1), § 501(a)(1).
Id. § 501(a)(3).
Id. § 501(b).
Id.
Id. § 501(a)–(b).
Intelligence Authorization Act for Fiscal Year 1981, sec. 407(b)(1), § 501(a)(1).
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The Reagan Administration, strutting executive stuff, argued later in its
term that the new Act gave the President unfettered discretion to determine
when to report a covert action to the intelligence committees.334 Some
members of Congress, however, interpreted “timely fashion” to mean days, not
weeks or months.335 Such differences between the President and Congress led
to new calls for intelligence reform in the aftermath of Iran-Contra.336
For the President, the preamble to the Intelligence Oversight Act of 1980
did contain something that could be used to restrain Congress’s role on covert
action. The preamble stated that its requirements applied “[t]o the extent
consistent with all applicable authorities and duties, including those conferred
by the Constitution.”337 Therefore, a president who believed Congress had no
constitutional role on covert action could interpret the rest of the statute as
void.338 That bold interpretation, in the swing of a presidential baton, could
silence those who demanded findings and other forms of notice. Eventually,
this baton was passed from President Reagan to President George W. Bush.
F.
Executive Orders 12,036 and 12,333
Neither Hughes-Ryan nor the Intelligence Oversight Act of 1980 used the
term “covert action” explicitly. In those two pieces of legislation, Congress
defined covert action as something other than gathering foreign intelligence.339
Such definitions, by negative implication, were a throwback to the early days
of covert action after World War II. Unsurprisingly, as presidents added
details to the covert-action process, they continued to use euphemisms. For a
while, their favorite euphemism for covert action was “special activities.”340
In 1978, President Carter issued Executive Order 12,036 that provided a
better definition of the role United States agencies played in intelligence
activities.341 Section 1-302 of the Order continued the tradition of using the
334. DAUGHERTY, supra note 5, at 97.
335. Id.
336. See infra Part II.G.
337. Intelligence Authorization Act for Fiscal Year 1981, sec. 407(b)(1), § 501(a).
338. For two articles that present the case for a limited congressional role on covert action,
see Lawrence J. Block & David B. Rivkin, Jr., The Battle to Control the Conduct of Foreign
Intelligence and Covert Operations: The Ultra-Whig Counterrevolution Revisited, 12 HARV. J.L.
& PUB. POL’Y 303 (1989), and Robert F. Turner, The Constitution and the Iran-Contra Affair:
Was Congress the Real Lawbreaker?, 11 HOUS. J. INT’L L. 83 (1988).
339. Hughes-Ryan Amendment to the 1961 Foreign Assistance Act, Pub. L. No. 93–559, sec.
32, § 662, 88 Stat. 1795, 1804 (1974) (codified as amended at 22 U.S.C. § 2422 (1976)), repealed
by Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102–88, 103 Stat. 429;
Intelligence Authorization Act for Fiscal Year 1981, Pub. L. No. 96-450, sec. 407(b)(1), 94 Stat.
1975 (1980) (current version as amended at 50 U.S.C. § 413 (2000)).
340. See Exec. Order No. 12,333, 3 C.F.R. 200 (1981), reprinted in 50 U.S.C. § 401 (2000);
Exec. Order No. 12,036, 3 C.F.R. 112, 114 (1978), reprinted in 50 U.S.C. § 401 (Supp. II 1978).
341. Exec. Order No. 12,036, 3 C.F.R. at 114–15.
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National Security Council as the intermediary between the CIA and the
President on covert action.342 Plus, it listed those members of a Special
Coordination Committee (SCC) at the NSC who needed to be involved in the
approval of special activities.343
President Carter’s Order was repealed in 1981 when the Reagan
Administration issued Executive Order 12,333.344 Of special importance,
Executive Order 12,333 eliminated the list of executive officials who needed to
be involved in approvals (and denials) of special activities.345 In a turn toward
more obscurity on the published process for covert action, the Reagan
Administration gave the NSC the basic power to “establish such committees as
may be necessary to carry out its functions and responsibilities.”346 No longer
was the Attorney General, for example, guaranteed a place at the table by the
unclassified language of the Executive Order. The NSC, on behalf of the
President, could pick and choose those people it wanted to participate in the
process of reviewing covert action.347 In this regard, Reagan’s Executive
Order can be interpreted as a challenge to congressional oversight and other
forms of public scrutiny regarding covert action. In essence, President Reagan
was the role model for President George W. Bush. Breaking with the tradition
of the Hughes-Ryan Amendment, the Church Committee, and the Intelligence
Oversight Act of 1980, the Reagan Administration softened the spotlight on
covert action.
An important aspect to Executive Order 12,333, a bit of light in the
darkness, is its definition of covert action.348 This definition has carried
forward, in large part, to the present day.349 Executive Order 12,333 describes
covert action as:
[Special activities] conducted in support of national foreign policy objectives
abroad which are planned and executed so that the role of the United States
Government is not apparent or acknowledged publicly, and functions in
support of such activities, but which are not intended to influence United
States political processes, public opinions, policies, or media and do not
342. Id. at 114.
343. Id. at 114–15 (including in the list of committee members “the Secretary of State, the
Secretary of Defense, the Attorney General, the Director of the Office of Management and
Budget, the Assistant to the President for National Security Affairs, the Chairman of the Joint
Chiefs of Staff, and the director of Central Intelligence”).
344. Exec. Order No. 12,333, 3 C.F.R. 200 (1981), reprinted in 50 U.S.C. § 401 (2000).
345. REISMAN & BAKER, supra note 72, at 120.
346. Exec. Order No. 12,333, § 1.2, 3 C.F.R. 200, 201 (1981), reprinted in 50 U.S.C. § 401
(2000).
347. See id.
348. Id. at 215.
349. See 50 U.S.C. § 413(b)(e) (2000); see also infra Part II.H.
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include diplomatic activities or the collection or production of intelligence or
350
related support functions.
This definition reflects three basic propositions about covert action. First,
it agrees that “[c]overt activity is not fundamentally an intelligence activity;
rather, it is a foreign policy option” for the White House.351 That is, the Order
excludes traditional intelligence activities—foreign intelligence and counterSecond,
intelligence—which constitute the CIA’s primary mission.352
emphasizing the need for secrecy to protect intelligence sources and methods,
the Order establishes the CIA as the appropriate American agency to conduct
covert action during peacetime.353 During a declared war or a period covered
by the War Powers Resolution, the Armed Forces are acknowledged for their
role in special activities.354 Otherwise, the CIA is in charge “unless the
President determines that another agency” is better suited.355 Although this
part of the Executive Order seems to call for deliberation in switching to
another agency, nothing in the Order suggests that the President would have to
do more than make an oral statement, during an unrelated meeting in the Oval
Office or while chairing an NSC meeting, to make the switch. The NSC and
the CIA, after all, serve at his direction. Third, the Order makes clear that the
details of any special activity should be kept from the public.356 Indeed, if the
President had used the term covert action, instead of special activity, the need
for secrecy would have been even more obvious. Covert action is the opposite
of acknowledged activity.
G. Iran-Contra
In the wake of Iran-Contra,357 both the President and Congress created
entities to study the scandal and recommended remedial measures to the
350. Exec. Order No. 12,333, § 3.4(h), 3 C.F.R. at 215.
351. DAUGHERTY, supra note 5, at 13 (quoting Thompson J. Strong, Covert Activities and
Intelligence Operations: Congressional and Executive Roles Defined, 1 INT’L J. INTELLIGENCE
& COUNTERINTELLIGENCE 63, 64 (1986)).
352. See id. Collecting foreign intelligence (whether through technical or human sources)
plus analyzing what has been collected has accounted for about ninety-five percent of the national
intelligence budget. See id. at 10–11; see also Robert M. Gates, The CIA and Foreign Policy, 66
FOREIGN AFF. 215, 216 (1987–88) (acknowledging that over ninety-five percent of the national
intelligence budget is for the collection and analysis of intelligence information). Yet, more of the
intelligence budget may now go to covert action after 9/11.
353. DAUGHERTY, supra note 5, at 14.
354. Exec. Order No. 12,333, § 1.8(e), 3 C.F.R. at 206.
355. Id.
356. DAUGHERTY, supra note 5, at 13.
357. Iran-Contra connected two clandestine projects. On the one hand, the Reagan
Administration negotiated with Iran to obtain assistance in freeing American hostages in
Lebanon. See THEODORE DRAPER, A VERY THIN LINE: THE IRAN-CONTRA AFFAIRS 120–27,
171–202 (1991). On the other hand, the Reagan Administration skirted congressional limits for
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intelligence community.358 The public renewed its interest in the third option
of American foreign policy.359 And not since the Church Committee was so
much about the CIA and the NSC revealed.
One study determined that although “[c]overt operations are a necessary
component of our Nation’s foreign policy,” the “Administration’s conduct in
the Iran-Contra Affair was inconsistent” with the Intelligence Oversight Act of
1980.360 Very troubling to most observers was that the President kept the SSCI
and the HPSCI in the dark for ten months about the Iranian arms sales and the
supplies to the Contras.361 The Reagan Administration had justified its tenmonth delay in notification by a broad interpretation of the phrase “timely
fashion” in the Intelligence Oversight Act of 1980.362 These justifications
were frustrating to Congress. Sure, Congress could be more specific about
support to the Contras in Nicaragua, a paramilitary group opposed to the Soviet-assisted
Sandinista Government in Nicaragua. See REPORT OF THE CONGRESSIONAL COMMITTEES
INVESTIGATING THE IRAN CONTRA AFFAIR WITH SUPPLEMENTAL, MINORITY, AND ADDITIONAL
VIEWS, S. REP. NO. 100-216, H.R. REP. NO. 100-433, at 25–27, 31–34 (1st Sess. 1987)
[hereinafter IRAN-CONTRA REPORT]; see also National Security Archive, THE CHRONOLOGY:
THE DOCUMENTED DAY-BY-DAY ACCOUNT OF THE SECRET MILITARY ASSISTANCE TO IRAN
AND THE CONTRAS 7 (1987) [hereinafter THE CHRONOLOGY]. With assistance from the Israelis,
TOW and HAWK missiles were sold to the Iranian government at a mark-up. See IRAN CONTRA
REPORT, supra, at 335–38, 415–17. Some profits from this sale were diverted to the Contras. Id.
at 197. The “arms for hostages” deal violated American export restrictions, ran counter to the
administration’s public position against negotiating with terrorists, and did not comply with
requirements for notice on covert actions. See 22 U.S.C. § 2753(a) 1989; see also IRAN-CONTRA
REPORT, supra, at 418–19.
358. See REPORT OF THE PRESIDENT’S SPECIAL REVIEW BOARD B-19-20 (1987). President
Reagan established a three-member board, chaired by former Senator John Tower, to “conduct a
comprehensive study of the future role and procedures of the National Security Council staff in
the development, coordination, oversight, and conduct of foreign and national security policy.”
Exec. Order No. 12,575, 3 C.F.R. 241, 242 (1986).
359. See Jodie Morse, Managing the News: The History and Constitutionality of the
Government Spin Machine, 81 N.Y.U. L. REV. 843, 855 (2006).
360. IRAN-CONTRA REPORT, supra note 357, at 383, 415. The Report concluded that “the
Iran-Contra Affair resulted from the failure of individuals to observe the law, not from
deficiencies in existing law or in our system of governance.” Id. at 423.
361. Id. at 415. The Contra Affair was exposed when a commercial C-123 cargo plane,
piloted by a “private” American crew and loaded with 50,000 rounds of ammunition, automatic
rifles, grenades, and military gear, was shot down over Nicaragua by the Sandinistas. See IRANCONTRA REPORT, supra note 357, at 144; see also Richard Halloran, American Is Captured After
Plane Is Downed in Nicaraguan Territory, N.Y. TIMES, Oct. 8, 1986, at A1. The Sandinistas
obtained documents from the plane and a statement from the crew’s lone survivor, proving the
U.S. Government was secretly arming the Contras. THE CHRONOLOGY, supra note 357, at 144.
The “arms for hostages” deal with Iran was exposed a month later by a story in Al-Shiraa, a
Lebanese magazine. Id. at 537. Only after U.S. involvement became publicly known did
Congress receive notice of the findings. Id. at 228.
362. See DAUGHERTY, supra note 5, at 97.
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what it expected. But how could oversight be conducted when the Executive
blatantly ignored the law?
H. The Intelligence Authorization Act of 1991
The SSCI and the HPSCI, armed with recommendations from the IranContra committees, drafted new legislation for better oversight.363 Clearly, the
new legislation was a remedy for past abuses, whether from Iran-Contra or
earlier eras. Indeed, at the beginning of a report on the new legislation, the
Senate noted:
Under current law . . . the Congressional mandate is ambiguous, confusing
and incomplete. There is no express recognition in statute of the President’s
authority to conduct covert actions . . . [,] Presidential approval procedures are
not specified . . . [,] [t]he statutory requirement for informing the intelligence
committees of covert actions are subject to misinterpretation, and the scope of
364
activities covered by the law is undefined.
Such efforts to set the comprehensive rules of the covert-action game
resulted in the Intelligence Authorization Act of 1991,365 the last piece of
major legislation on the process for authorizing and conducting covert actions.
This framework was in place on 9/11 and continues to the present day.
Overall, Title VI of the 1991 Act repealed the Hughes-Ryan Amendment,366
replaced Section 501 of the National Security Act of 1947,367 provided a
statutory definition of covert action for the first time,368 and established more
comprehensive reporting requirements.369
In explicit terms, Congress
recognized the President’s authority to conduct covert action. Thus, covert
363. S. REP. NO. 102-85, § 503 (1991).
364. Id.
365. See Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, 105 Stat. 429
(1991) (codified in scattered sections of 10 and 50 U.S.C.).
366. Id. at sec. 601.
367. Id. at sec. 602(a)(2). This section was redrafted to make clear that the President “shall
ensure” that the intelligence committees are kept “fully and currently informed” of any
“significant anticipated intelligence activity,” including “all covert action.” See id. at sec.
602(a)(2), §§ 501(a)(1), 503(b)(1) (codified at 50 U.S.C. §§ 413(a)(1), 413(f) (2000)). In
addition, the redrafted section requires that “any illegal intelligence activity is reported promptly
to the intelligence committees, as well as any corrective action that has been taken or is planned
in connection with such illegal activity.” Id. § 501(b) (responding to Recommendation No. 18 of
the IRAN-CONTRA REPORT, supra note 357, at 426).
368. Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(e).
369. See Paul Gumina, Title VI of the Intelligence Authorization Act, Fiscal Year 1991:
Effective Covert Action Reform or “Business as Usual”?, 20 HASTINGS CONST. L.Q. 149, 177–78
(1993). The Iran-Contra committee attributed abuses of the covert-action process to personal
indiscretions, not to any deficiency in existing law. See IRAN-CONTRA REPORT, supra note 357,
at 423.
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action became a normal part of the American legal landscape. The remaining
questions were on the details.
The Intelligence Authorization Act of 1991, like the Hughes-Ryan
Amendment, rested on a basic premise that the President, not some delegate,
should be the one who authorizes covert action. The President should do so
upon a finding that the action is necessary to an “identifiable” objective of
American foreign policy important to the national security.370 Reacting to
Iran-Contra, the 1991 legislation enacted a number of new requirements: (1) a
finding must be in writing;371 (2) the finding must be reported to Congress “as
soon as possible” and “before the initiation of the covert action;”372 (3) if time
does not permit the preparation of a written finding, a written record of the
President’s decision must be made “contemporaneously” and reduced to a
written finding within forty-eight hours;373 (4) other than in exceptional cases,
the finding may not authorize activities that have already occurred;374 (5) the
finding must specify each U.S. entity or third party which will fund or
participate significantly in the action;375 and finally (6) no finding may
authorize “any action that would violate the Constitution or any statute of the
United States.”376
Despite all the changes, the 1991 Act did not completely intrude on the
President’s power. It made clear that nothing in its title “shall be construed” as
requiring approval from the intelligence committees “as a condition precedent
to the initiation of any significant anticipated intelligence activity.”377 (Covert
action, it seems, would be a significant anticipated intelligence activity, not
requiring congressional approval.) Further, Section 503(c) spelled out two
exceptions to the rule that a written finding must be fully reported to
Congress.378 First, in situations where the President determines that it is
“essential to limit access to the finding to meet extraordinary circumstances
affecting vital interests of the United States” disclosure may be limited to eight
people—specifically the chairpersons and ranking minority members of the
two intelligence committees and the majority and minority leaders of both the
House and the Senate.379 Second, in situations where a covert action has begun
without providing Congress with a finding, “the President shall fully inform
370. Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(a).
371. Id. § 503(a)(1).
372. Id. § 503(c)(1).
373. Id. § 503(a)(1) (emphasis added).
374. Id. § 503(a)(2).
375. Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(a)(3).
376. Id. § 503(a)(5).
377. Id. § 501(a)(3).
378. See id. §§ 503(c)(2), 503(c)(3).
379. Id. § 503(c)(2) (emphasis added). President George W. Bush probably relied on this
exception in the limited notices provided to Congress on covert actions in the post-9/11 era.
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the intelligence committees in a timely fashion.”380 In those situations, the
President must also “provide a statement of the reasons for not giving prior
notice.”381 This exception, drawing on past practices, might be used in
extraordinary circumstances similar to President Carter’s decision not to
inform Congress of Canadian assistance in freeing U.S. hostages from Iran.382
In sum, President George H.W. Bush’s lobbying and veto of an earlier bill
prevented Congress from imposing an across-the-board requirement of notice
to the oversight committees within forty-eight hours of a finding. As a form of
conciliation, President Bush stated in his November 30, 1989 signing statement
for the 1991 Act:
The statute requires prior notice or, when no prior notice is given, timely
notice. I anticipate that in almost all instances, prior notice will be possible. In
those rare instances where prior notice is not provided, I anticipate that notice
will be provided within a few days. Any withholding beyond this period
would be based upon my assertion of the authorities granted this office by the
383
Constitution.
Thus, President Bush’s tenor was sufficient to atone for Iran-Contra sins,
perceived or real, which occurred when Reagan was President (and Bush was
Vice President).
Under the 1991 Act, not only must covert actions be reported to Congress,
but so must “any significant undertaking pursuant to a previously approved
finding.”384 The changes are made in a Memorandum of Notification (MON),
which is technically different from an original finding.385 Of course, the line
between a change and new action is not always clear. Yet, either as an MON
or a finding, something must be provided to Congress.
President Bush, as he noted when signing the new legislation, did not
believe a statutory definition of “covert action” was necessary.386 Congress
disagreed. To a great extent, the 1991 Act borrowed from President Reagan’s
Executive Order 12,333.387 Thus, the new Act defined covert action as:
[A]n activity or activities of the United States Government to influence
political, economic, or military conditions abroad, where it is intended that the
380.
381.
382.
383.
Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(c)(3).
Id.
See supra Part I.F.
Statement on Signing the Intelligence Authorization Act, Fiscal Year 1990, 2 PUB.
PAPERS 1611 (Nov. 30, 1989).
384. Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(d).
385. See David E. Colton, Speaking Truth to Power: Intelligence Oversight in an Imperfect
World, 137 U. PA. L. REV. 571, 606 (1988).
386. Statement on Signing the Intelligence Authorization Act, Fiscal Year 1991, 2 PUB.
PAPERS 1044 (Aug. 14, 1991).
387. Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(e) (defining
“covert action”); see generally supra Part II.F.
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role of the United States Government will not be apparent or acknowledged
publicly, but does not include—
(1) activities the primary purpose of which is to acquire intelligence,
traditional counterintelligence activities, traditional activities to improve or
maintain the operational security of United States Government programs,
or administrative activities;
(2) traditional diplomatic or military activities or routine support to such
activities;
(3) traditional law enforcement activities conducted by United States
Government law enforcement agencies or routine support to such
activities; or
(4) activities to provide routine support to the overt activities (other than
activities described in paragraph (1), (2), or (3)) of other United States
388
Government agencies abroad.
This definition turns on the government’s ability to maintain plausible
deniability of the activity to the outside world: “[t]his deniability would not, of
course, apply to those within the United States Government who have a need
to know about such activities . . . .”389 In other words, the buffers and filters to
covert action exist between the President and the domestic and international
public, not between the President and the implementers in the Executive
Branch. The attribute of “deniability,” however, does not mean that the
activities that underlie a covert action will be invisible to the public.390 Rather,
“covert actions may involve activities which are visible or public, but the role
of the United States in carrying out such activities is itself not apparent or
acknowledged.”391 Under the new statute, the relevant inquiry is whether the
United States government intends for its participation in an action to remain
undisclosed.392 Note the Predator strike in Yemen in 2002.393 By contrast, as
the Senate Report explained, “[a]ctivities which may be undertaken in secret
but where the role of the United States will be disclosed or acknowledged once
such activities take place are not covert actions.”394 This excludes actions
whose planning and preparation are secret but whose secrecy disappears as
soon as American boots, complemented by American uniforms, hit the
ground.395
388.
389.
390.
391.
392.
393.
394.
395.
Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(e).
S. REP. NO. 102-85, § 503, at 236 (1991).
Id.
Id.; see also supra Part II.C.
Id.
See Priest, supra note 1.
S. REP. NO. 102-85, § 503, at 236 (1991) (emphasis added).
See id.
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As a sort of negative definition of covert action, the new statute rules out
some activities.396 For example, “[c]oncealment or misrepresentation of the
true nature of an acknowledged United States activity does not make it a
‘covert action,’ even if the concealment or misrepresentation is intended to
influence political, economic, or military conditions abroad.”397 In short,
something is not a covert action just because its specific objectives are
concealed.398 The essence of covert action lies in hiding the American hand
behind an operation, not simply covering up some of the fingers. As the
Senate summarized, “the definition encompasses activities to influence
conditions—be they political, economic, or military—overseas and focuses on
the objective features of the activity, rather than on a formal relationship to
foreign policy purposes, as the controlling test in determining which activities
constitute covert action.”399
The new statute, borrowing from Executive Order 12,333, also carved out
various activities from the general definition by category.400 Foreign
intelligence, counter-intelligence, counter-espionage, traditional diplomatic
and military activities, traditional law enforcement activities, and routine
support for all such activities are not covert actions.401 Therefore, another way
of defining covert action is by contradistinction to other activities. These
activities, however, do not lend themselves to precise definition. Defining
what is “routine” may be just as difficult as defining what is “covert.”
The continuity between Executive Order 12,333 and the statutory
definition created some confusion.402 In reconciling the two definitions of
covert action, the new Act’s drafters intended that “the core [statutory]
definition of covert action . . . be interpreted broadly.”403 More precisely, the
definition from the 1991 Act has greater application than the term “special
396. See id. at 237.
397. Id. at 237.
398. Id.
399. S. REP. NO. 102-85, § 503, at 236 (1991).
400. Id. at 237–40.
401. Id.
402. See, e.g., JOHNSON, supra note 280, at 2, 48 (referring to “disruptive economic covert
action” as “special activities.”); Loch K. Johnson, Covert Action and Accountability: DecisionMaking for America’s Secret Foreign Policy, 33 INT’L STUDIES Q. 81, 82 (1989); Thompson J.
Strong, Covert Activities and Intelligence Operations: Congressional and Executive Roles
Defined, 1 INT’L J. INTELLIGENCE & COUNTERINTELLIGENCE 63, 64–65 (1986) (calling special
activities a “euphemistic term” that has now been “substituted” for covert action); Andrew C.
Tuttle, Secrecy, Covert Action, and Counterespionage: Intelligence Challenges for the 1990s, 12
HARV. J.L. & PUB. POL’Y 523, 530 n.52 (1989) (stating that the term “special activities” is a
“generally accepted euphemism for covert action”).
403. S. REP. NO. 102-85, § 503, at 235 (1991) (to broaden the definition, the drafters did not
retain the requirement “that [special activities] be ‘in support of national foreign policy objectives
abroad’” (enumerated under Exec. Order 12,333)).
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activities” from the Executive Order.404 For this reason, the new statute
applies not only to classic covert actions (i.e. propaganda, paramilitary action,
and political action), but also to some activities that do not fit the traditional
rubric of foreign intelligence and counter-intelligence.405 In response to IranContra, Congress drew more activities within the framework of written
findings and prior notice to the intelligence committees.406 For example, even
if the “exfiltration” of a blown intelligence asset from a foreign country was
not a classic covert action, Congress expected the covert action rules to apply.
Indeed, the CIA might actually use personnel and resources from the covert
action part of its house on such a special activity.
On covert action, the President and Congress must get things right. The
statutory definitions are very important. How well the President and Congress
do on covert action will have huge ripples, affecting other areas of foreign
policy and domestic policy. From George Washington to George W. Bush to
our new President, so much depends on the trust between the President and
Congress.
For any President, another way to define covert action is by the potential
damage of a failed operation. In general, a failed covert action has more
profound repercussions than a failed foreign intelligence operation. The fallout to the botched Bay of Pigs operation could have been war with Cuba; the
looming threat of Iran-Contra was impeachment. By contrast, a mistake in
gathering foreign intelligence might result in the imprisonment or death of a
human asset, most significant to that person and her family, but not so
significant to the United States. Because of such differences in potential
damage, it makes sense that covert action requires specific presidential
authorization and congressional oversight.407 When the stakes are higher, there
should be more process, and the decisions should be made at senior levels. For
covert action, more checks are needed on executive power.408 Covert action,
no matter what, is different in kind from the Federal Communications
Commission distributing frequencies to American radio stations.
Those activities that escape the covert action label, either through error or
by design, are subject only to routine decisionmaking; they do not require
“special authorization” or a written finding.409 On such activities, as with so
much else that falls within executive discretion, the President may choose to
404. Id.
405. See DAUGHERTY, supra note 5, at 15.
406. See supra Part II.G.
407. Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, sec. 602, 105 Stat.
429, 441–44 (codified at 50 U.S.C. §§ 413–413b) (2000)).
408. See DAUGHERTY, supra note 5, at 18 (“[A] range of potential political dangers exists for
the government engaging in covert action that does not inhere in the more traditional intelligence
disciplines.”).
409. Id. at 13.
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keep Congress in the dark and to rely on underlings to take care of details.410
This kind of discretion takes the matter from national security law to
administrative law.
Not everything that falls outside the category of covert action, however,
evades congressional oversight. Congress, perhaps aware of the imprecision to
any definition of covert action, created an additional layer of oversight through
section 602 of the 1991 Act, which amended Title V of the National Security
Act of 1947.411 In pertinent part, the added section 502 provides:
To the extent consistent with due regard for the protection from unauthorized
disclosure of classified information . . . , the Director of Central Intelligence
and the heads of all departments, agencies, and other entities of the United
States Government involved in intelligence activities shall (1) keep the
intelligence committees fully and currently informed of all intelligence
activities, other than a covert action . . . , including any significant anticipated
412
intelligence activity and any significant intelligence failure . . . .
According to the drafters, “[t]he requirement to report significant
anticipated activities means, in practice, that the committees should be advised
of important new program initiatives and specific activities that have major
foreign policy implications.”413 By adding “significant anticipated intelligence
activity,” Congress expanded the areas in which the Executive needed to
provide information.414 Even if the requirement of a written finding did not
apply, Congress made it clear that the President and the spymasters were
By this
expected to communicate with the oversight committees.415
arrangement, the clear preference was light over darkness, information over
stone-walling.
Under the new statutory framework, the CIA does not have many excuses
for keeping the intelligence committees in the dark. The CIA might believe an
activity is “insignificant” and not a “covert action.” But that excuse might go
contrary to keeping the committees informed “of all intelligence activities.”
However the new Act is parsed, most would agree that the CIA does not
have to tell the intelligence committees everything. The CIA should not be
expected to spend more time reporting on activities than conducting them; an
appropriate balance is still necessary. For example, consistent with the 1991
Act, the CIA might tell the committees that a senior Russian intelligence
officer has defected to the United States—without giving his name. By way of
compartments for operational security, very few within the CIA itself need to
410.
411.
412.
413.
414.
415.
Id.
Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), §§ 501–503.
Id. § 502(1).
S. REP. NO. 102-85, § 503, at 225 (1991).
See id.
See id.
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know the defector’s full identity; even CIA analysts with top-secret clearances
might not be told. Similarly, a generic notice, stripped of the most sensitive
information, might be a fair compromise between “fully” informing the
committees and protecting the defector’s life.
So on balance, the Intelligence Authorization Act of 1991 expanded the
connections between the President and Congress on intelligence activities, a
shared arrangement laid out in the original National Security Act of 1947 and
the amendments that followed.416 As the Cold War came to an end, Congress
reasserted its will that a second branch represent the public in reviewing covert
actions. Rather than have things done by winks, nods, and other oral
understandings, the President’s signature was required for covert action.
Backdating was for the past; full notice was for the future. One now wonders
whether the revelation of new abuses from President Bush’s term will cause
another round of changes to the covert action framework—or whether things
will remain the same.
III. DELEGATION
President George W. Bush said 9/11 changed everything for the United
States,417 which later became his reason to tune out the past and to reduce
Congress’s role in keeping us safe. Even so, a comprehensive, one-size-fitsall, covert-action program within a so-called global struggle on terror defeats
the purpose of having the President deliberate on each significant foreign
policy decision. Not everyone in our democracy trusts the CIA to fill in all the
blanks for the President.
Our desire to keep the President in contact with the dark side is a recent
phenomenon. Until the 1970s, before Congress charged into the realm of
covert action, the CIA often took care of “routine” covert actions, without
seeking the President’s prior approval, and without informing the President
after the action was taken.418 On those actions that the CIA took to the White
House, sometimes the President suggested his approval more by winks and
nods.419 Often, to maintain plausible denial, the President did not put anything
in writing.420 For example, the CIA clearly believed it had the authority to
assassinate Fidel Castro, although it seems neither President Kennedy nor his
416. Gumina, supra note 369, at 183.
417. See The President’s News Conference with Prime Minister Ayad Allawi of Iraq, 40
WEEKLY COMP. PRES. DOC. 2116 (Sept. 23, 2004).
418. See DAUGHERTY, supra note 5, at 98.
419. See id. at 93–94.
420. See id.
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brother put anything in writing for the CIA taskmasters.421 Years later,
Hughes-Ryan and other acts of Congress put an end to such a loose chain of
command.422 Plausible denial ended.423
Although the President is now required to approve covert actions in
writing, Congress, it still seems, accepts that those findings may be short and
general. The change from the era of plausible denial may be as much about
form as substance. Congress has not required (and probably could not) a
certain number of pages for something to satisfy a written requirement. As a
result, those outside the inner sanctum are left to speculate on the forms—and
the number of pages—to covert action.424 Very few people are involved in the
process of conceiving and approving covert action.425 Those without security
clearances are excluded, and many with top-secret clearances do not have a
need to know.426 By design and by necessity, the texts to presidential findings
are not shared with the public.427 The secrecy, however, has not been
complete.428 Some clues have leaked to the public through articles and books,
and these clues are sufficient for some scholarship into the dark side of
American foreign policy.429
Soon after 9/11, the DCI, George Tenet, went to President Bush and his
advisers with a wish list of aggressive measures against the Taliban and al
Qaeda.430 These measures fit into what the President declared as a new form
421. See Matthew C. Wiebe, Assassination in Domestic and International Law: The Central
Intelligence Agency, State-Sponsored Terrorism, and the Right of Self-Defense, 11 TULSA J.
COMP. & INT’L L. 363, 379 (2003).
422. See supra Part II.B.
423. See supra Part II.B.
424. Bob Woodward reported that the comprehensive order against al Qaeda after 9/11 was a
ten-page MON with two appendices which modified President Reagan’s May 12, 1986 finding on
counterterrorist operations. Bob Woodward & Dan Balz, Combating Terrorism: ‘It Starts
Today,’ WASH. POST, Feb. 1, 2002, at A1.
425. See Gumina, supra note 369, at 187.
426. See id.
427. See id. at 188.
428. See id. at 192.
429. See id.
430. See TENET, supra note 129, at 175, 208 (“The President approved our recommendations
on Monday, September 17, and provided us broad authorities to engage al Qa’ida. As Cofer
Black later told Congress, ‘the gloves came off’ that day.”). Tenet, to rebut any charges that the
CIA did not take the terrorism threat seriously enough during the transition between the Clinton
and Bush administrations, states that most of these measures had been prepared before 9/11. Id.
at 178 (“We were going to strangle their safe haven in Afghanistan, seal the borders, go after the
leadership, shut off their money, and pursue al-Qa’ida terrorists in ninety-two countries around
the world. We were ready to carry out all these actions immediately, because we had been
preparing for this moment for years. We were ready because our plan allowed us to be.”).
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of war to “smoke [the terrorists] out of their caves.”431 Tenet asked. Tenet
received. Very few restraints were placed on him or the CIA. Vice President
Cheney, talking about the things that needed to be done in the shadows against
terrorists, said as much during a television interview within a week of 9/11.432
The White House authorization that Tenet received probably hinged on a
list of “high-value” terrorism targets. These targets, subject to the most
extreme measures in a “lethal” finding, may have been designated by name or
by a collection of factors. However the finding was worded, Osama bin
Laden, still at large, must have been at the top of the list. As time went on,
assuming that the finding depended more on names than on factors, the list
may have been revised to delete those who were captured or killed, and to add
those identified as new threats. This process of revision took place more at the
Agency level than the White House level—although President Bush is reported
to have kept a sort of al Qaeda scorecard at his desk.433 For the sake of speed
and to keep the President’s hands relatively clean, Tenet may have retained
broad authority to decide whether and when to hit those on the list.434
Accordingly, Tenet, not the President, was the man pulling the trigger on some
terrorists.
As deep as the country traveled into night, President George W. Bush was
not the first to issue a blanket finding against terrorists.435 The practice of onesize-fits-all findings against terrorists has antecedents in the covert actions of
431. Remarks on Financial Sanctions Against Terrorists and Their Supporters and an
Exchange with Reporters, 2 PUB. PAPERS 1153 (Sept. 24, 2001).
432. On September 16, 2001, Tim Russert of Meet the Press questioned the Vice President
regarding the U.S. Government’s likely response to 9/11. Cheney answered that question as
follows:
We also have to work, though, sort of the dark side, if you will. We’ve got to spend time
in the shadows in the intelligence world. A lot of what needs to be done here will have to
be done quietly, without any discussion, using sources and methods that are available to
our intelligence agencies, if we’re going to be successful. That’s the world these folks
operate in, and so it’s going to be vital for us to use any means at our disposal, basically,
to achieve our objective.
NBC News’ Meet the Press, Interview by Tim Russert with Vice President Richard Cheney (NBC
television broadcast Sept. 16, 2001), transcript available at http://www.fromthewilderness.com/
timeline/2001/meetthepress091601.html.
433. WOODWARD, supra note 7, at 224 (“Bush took a classified version [of the 22 Most
Wanted List] for himself that had photos, brief biographies and personality sketches of the 22
men. When he returned to his desk in the Oval Office, he slipped the list of names and faces into
a drawer, ready at hand, his own personal scorecard for the war.”). When one of the twenty-two
al Qaeda leaders was reported killed or captured, President Bush would “put a big ‘X’ through the
photo.” Id.
434. Tenet, in turn, may have delegated his authority to senior officials in the CIA’s
Clandestine Service.
435. See TREVERTON, supra note 5, at 249
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the Ford and Carter Administrations.436 Those findings serve as reminders that
other presidents have been concerned about terrorist attacks. For us, focused
on the present, the stakes could not be higher. Images of a smoldering pit at
Ground Zero, a severed chunk from the Pentagon, and a crumpled plane in a
Pennsylvania field are part of the collective consciousness.
Compared to President George W. Bush, Presidents Ford and Carter did
not make covert action a central part of their foreign policies.437 Under the
Ford Administration and the early part of the Carter Administration, covert
action almost came to a close.438 The scandals under the Nixon Administration
caused an extreme caution about intelligence activities.439 President Carter’s
DCI, Stansfield Turner, described the moment well: “When I took over in 1977
the covert action cupboard was bare and sentiment within the CIA itself was
against stocking it.”440 Later in the Carter Administration, after the fall of the
Shah in Iran and the Soviet invasion of Afghanistan, covert action picked up
pace.441 President Carter, putting aside some of his idealism about a foreign
policy based on human rights, issued several findings to counter the
Communist threat.442 The findings themselves, although in writing, were short
and broad.443 Eventually, responding to congressional complaints about this
generality, President Carter added some detail.444 By the end of the Carter
Administration, the findings fit within two categories: either generic findings
on “transnational issues,” or tailored findings for a “single country/single
issue.”445 Under either category, the findings were more like an investment
banker’s deal sheet than a corporate issuer’s indenture. It seems that both
President and Congress trusted the CIA to fill in details.
Broad findings have advantages and disadvantages. One advantage is that
they give the specialists, usually at the CIA, the discretion to interpret the
President’s wishes. The President just does not have the time or the expertise
to spell out everything for the covert action crew. A disadvantage is that the
CIA may end up implementing its own wishes rather than the President’s.
Recreated is the potential for sloppiness and abuse from the old days of
plausible denial.
436.
437.
438.
439.
(1985).
440.
441.
442.
443.
444.
445.
Id.
See DAUGHERTY, supra note 5, at 178.
Id.
See STANSFIELD TURNER, SECRECY AND DEMOCRACY: THE CIA IN TRANSITION 84
Id.
See DAUGHERTY, supra note 5, at 183–84.
See id. at 185.
Id.
See id. at 184–85.
Id. at 185.
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Problems with delegations of power are not unique to covert action or to
the CIA. Even so, the fall-out from a covert action gone bad (lost lives and the
potential for escalation into open war) is higher than that from the Federal
Communications Commission issuing a radio license to a party less deserving
than another. Moreover, the FCC’s actions are subject to public checks such as
notice and comment rulemaking, not applicable to the CIA.
Stansfield Turner observed an inherent tension between the CIA and
Congress on covert action: the CIA, as implementer, has a tendency to prefer
broad findings whereas Congress, as overseer, tends toward the specific. As
Turner notes:
Under a broad finding, an operation can be expanded considerably; with a
narrow one, the CIA has to go back to the President to obtain a revised finding
if there is any change of scope. The Congress is wary of broad findings; they
can easily be abused. The CIA is afraid of narrow findings; they can be a
446
nuisance.
That tension may prevail today for Predator strikes and other measures
against terrorists. The preferences between the CIA and Congress may have
remained the same. For Turner’s observations to be accurate, however, one
must assume that the CIA is willing to take risks in the gray area not covered
by explicit instructions. That may no longer be true.
As a result of the new formalism to covert action, the lessons learned from
Cuba, Chile, Iran-Contra, and other experiences, the CIA may be pushing for
findings more akin to SEC registration statements to protect its officers against
civil and criminal liability. Congress, on the other hand, may have shifted
toward the general. Through notification, Congress takes on an implicit role of
approving presidential proposals for covert action.447 Congress, of course,
does not have the explicit authority to approve the actions, an approval which
remains a core presidential prerogative, but the collective decision by the
oversight committees not to leak a particular plan and not to cut off funding
brings Congress into the circle of responsibility. For this reason, members of
the oversight committees who are averse to risk might prefer broad findings,
paralleling Congress’s blissful ignorance during the era of plausible denial. If
something goes wrong with a broad finding, Congress can disclaim
responsibility and blame those who filled in the blanks. That said, Turner’s
general description is not necessarily incorrect. So much depends on context.
So much depends on first principles.
Under the Constitution, the President may not delegate certain powers.
The power to veto bills448 and the power to pardon criminal offenses449 come
446. TURNER, supra note 439, at 169.
447. See Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, sec. 602(a)(2),
§ 501, 105 Stat. 429, 441 (codified at 50 U.S.C. § 413 (2000)).
448. U.S. CONST. art. I, § 7, cl. 3.
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to mind. Although the President could seek advice on what to veto and whom
to pardon, the ultimate decision should come from the Oval Office. Delegating
those powers would go against the checks and balances of our system. If the
President entrusted the veto power or the pardon power to the Vice President,
that could be construed as a sign that the President is no longer capable of
carrying out his duties. On the other hand, the President should not be
expected to carry out all Article II powers by himself. Although he personifies
the executive power, he is not the only person in the Executive Branch. The
Constitution provides for consultation with other people in the Executive
Branch to run the national government.450
When it comes to covert action, the commander-in-chief power differs
from the veto and pardon powers. The veto and pardon are more binary: either
a bill is vetoed or not; either someone is pardoned or not. The commander-inchief power has a broader range. The President could be called to make
strategic decisions such as reacting to attacks from other nations or launching
anticipatory defenses against other nations. Depending on his preferences, he
could leave the tactical decisions to the generals or, like President Lyndon
Johnson during the Vietnam War, could involve himself in selecting the sites
to be bombed.451 No matter the management style, there still seems to be a
core to the commander-in-chief power that only the President should exercise.
For example, President Bush may not have been allowed to delegate the
decision to invade Iraq in 2003 to Vice President Cheney. In a further
extrapolation, if President Bush had delegated this decision to his wife Laura,
other problems would arise. The First Lady was neither elected, as Cheney
was, nor confirmed by the Senate, as were other executive officers.452
At the statutory level, the Intelligence Authorization Act of 1991 also goes
against oblique delegations. Under that Act, the President must issue a written
finding that demonstrates the importance of each covert action to American
national security.453 In practice, the finding is shared with the oversight
committees, but not with the full Congress. In the spirit of the Act, a one-time,
one-sentence finding that “the national security requires comprehensive covert
action against al Qaeda” does not suffice. The President would not be playing
by the rules. Neither President Ford nor President Carter was that broad in any
finding.
449. U.S. CONST. art. II, § 2, cl. 1.
450. See id.
451. See John H. Messing, American Actions in Vietnam: Justifiable in International Law?,
19 STAN. L. REV. 1307, 1317 (1967).
452. See Jonathan Turley, Paradise Lost: The Clinton Administration and the Erosion of
Executive Privilege, 60 MD. L. REV. 205, 234 (2001).
453. Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, sec. 602(a)(2), §
503(a), 105 Stat. 429, 442 (codified at 50 U.S.C. § 413b(a) (2000)).
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American presidents retain great discretion in determining how to cut and
serve the covert action bread. One President might present something in one
slice that another President might present in two slices. Such discretion, within
reason, is entirely permissible within the scope of a statute that does not
legislate to the detail of the Internal Revenue Code. But a piece can be too
thin, contrary to Congress’s express purpose—from Hughes-Ryan to the
Intelligence Authorization Act of 1991—to perform oversight. Information,
we all know, nourishes oversight. The thinnest finding would be a return to
the proposition that Congress cannot play any role in covert action. Even if the
oversight committees do not object to a thin slice on covert action, the problem
remains for the rest of our government. It is not for two intelligence
committees to overrule what two houses of Congress and the President agreed
to in the Intelligence Authorization Act of 1991. The legislative veto is
dead.454 Congress deserves more than wafers on the table.
Vague or blank findings present the dangers of what preceded HughesRyan. If Congress has manifested any intent about covert action it is that
presidential findings and the instructions to the operators must contain some
detail.455 The foreign country’s importance must be explained.456 The type or
types of covert action must be designated.457 And the connections to other
aspects of American policy toward that country must be made. These things
could fit on a page, but not in a line.
Times have changed, and covert action has become another area for
compromise between Congress and the President on American foreign policy.
Yet, by using statutes to set the boundaries on covert action, one buries a
deeper debate about inherent powers. The ambiguities are thus sorted out
through statutory interpretation rather than constitutional dialogue.458 Some
actions are clearly in bounds, some clearly out of bounds. Between the two
clear markers, in a twilight zone, there is so much room for disagreement—and
for the reasoned application of facts to standards.
IV. LIMITED NOTICES
President George W. Bush, failing to heed the lessons of Watergate and
Iran-Contra, may have returned to “off-the-books” covert action in the struggle
454. INS v. Chadha, 462 U.S. 919, 959 (1983).
455. See supra Part II.H.
456. See supra Part II.H.
457. See supra Part II.H.
458. See Hamdi v. Rumsfeld, 542 U.S. 507, 516–19 (2004) (providing a poignant example
showing how six members of the Court interpreted two congressional actions, the Authorization
for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001), and the Non-Detention Act, 18
U.S.C. § 4001(a) (2000), to decide whether the President had the authority to designate a United
States citizen as an enemy combatant).
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against terrorism. This may have been as simple as notifying fewer members
of Congress than the statutory minimum. Or this may have been as brazen as
disregarding all statutory requirements, keeping Congress in the dark through a
very expansive view of commander-in-chief powers.
The statutory framework allows limited notice to Congress if “the
President determines that it is essential . . . to meet extraordinary circumstances
affecting the vital interests of the United States.”459 Thus, limited notice
depends on the President’s initiative.460 If the process of covert action is seen
as a game of tennis, the Executive serves first. The term “extraordinary,”
however, suggests that limited notice is an exception, not a rule.461
That the Intelligence Authorization Act of 1991 allows for limited notice to
Congress in some circumstances is a concession to the Executive Branch that
the odds of a leak or an inadvertent disclosure are reduced when fewer people
know about the secret activity.462 While Congress is involved in covert action,
it watches over the process but does not approve or disapprove of a covert
action.463 The Executive decides whether to conduct covert action—and the
details to any covert action.464
Members of Congress and their staffs, when notified about covert action,
can meet with the President and his staff to argue against a covert action. Less
fair, Congress can use selective leaks. Even the threat of a leak, implied or
express, can cause the Executive to modify or abandon a covert action. Those
who leak, of course, are betting that the Executive, out of respect for another
branch of government or for fear of a public backlash, will not investigate the
leak, complete with subpoenas and polygraphs.
Not only do leaks compromise covert action, they complicate the CIA’s
collection of intelligence. The CIA’s sources include persons who commit
espionage on our behalf and foreign intelligence services that share
information with us through liaison channels.465 The CIA, like any other
intelligence service, cannot function unless it shows that it can be trusted to
keep the secrets. It is faint consolation to the blown source or to the exposed
liaison service that the source of the leak was Congress, not the CIA. When
those sources or liaison services make deals, they expect the CIA to enforce
those deals across our government. If those deals are not enforced, the CIA’s
sources, necessary for both covert action and foreign intelligence, clam up.
459. Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 102-88, sec. 602(a)(2),
§ 503(c)(2), 105 Stat. 429, 443 (codified at 50 U.S.C. 413b(c)(2) (2000)).
460. See id.
461. See id.
462. Id.
463. Id. §§ 501(a)(1), 503(c)(2).
464. Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), §§ 501(a)(3), 503(a).
465. See John A. Radsan, Second-Guessing the Spymasters with a Judicial Role in Espionage
Deals, 91 IOWA L. REV. 1259, 1260 (2006).
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The intelligence community believes the potential for leaks rises in
geometric proportion to the number of people “read into a program.” Adding
three people to the list of a covert action, for example, increases the odds of
leaks and unauthorized disclosures on the order of eight. This belief leads to
“compartmenting,” by which classified information is only shared with those
who have a “need to know.”466 This belief also leads to limited notice to
Congress in exceptional cases. In those cases, the risks of a leak outweigh the
benefits—more process, more participation—of full notification to the
oversight committees. Here, the Executive holds the key to limited notice.467
In deciding whether to use that key, the Executive weighs the interests: the
importance of the covert action and the potential damage from leaks and
disclosure. The Executive, whether consciously or not, tends to overvalue the
importance of the covert action to national security as well as the damage from
an unauthorized disclosure and the likelihood that Congress will leak. On the
other hand, the Executive tends to undervalue the benefits of broader
participation from Congress. Those are facts of our system of divided
government.
Congress is not just a source of leaks, however. One benefit to involving
Congress is a reality check on what the American people will support if—and
usually when—a covert action becomes known to the public. Despite the
CIA’s best efforts, history shows that very few covert actions, whether in Italy,
Iran, Guatemala, Cuba, Chile, or Afghanistan, stay forever in the shadows.
Politicians serve constituents while executive-branch bureaucrats serve their
agency and the President. Members of Congress, unlike a sole president, are a
better approximation for the mood all over the country. Perhaps the disaster at
the Bay of Pigs, for example, could have been averted if President Kennedy
had consulted members of Congress—beyond Senator William Fulbright—
who were not part of the executive groupthink. If so, many lives would have
been saved.
An acute burden of limited notice, besides reducing the number of views
among members of Congress, is that even those who do receive notice (the socalled “Gang of Eight”) are often not allowed to consult their staffs, the
national security experts and lawyers, to assist them in dealing with
intelligence community officials who give the briefings.468 The gaps in
knowledge between the Executive and Congress are thus accentuated.469
On limited notice, it is difficult to prevent exceptions from becoming the
rule. Congress has only provided a short and general standard about notices.
466. Id.
467. Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 503(c)(2).
468. See Tung Yin, Structural Objections to the Inherent Commander-in-Chief Power Thesis,
16 TRANSNAT’L L. & CONTEMP. PROBS. 966, 985–86 (2007).
469. Id.
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So much depends on the good faith and the common understanding of those
interpreting the rules and participating in the process—the White House, the
CIA, and Congress. To continue the tennis analogy, the President and
Congress are players who are calling their own lines; for covert action, the
courts do not serve as outside umpires. If Congress concludes that the
President has abused the process by limiting notice in routine cases, the
remedy will come, most likely, from inter-branch negotiation and, less likely,
by new legislation.470
The statutory framework, after all, does not put a cap on how many times
the exception to full notice can be invoked, nor does it spell out how to
distinguish the exceptional covert action from the routine.471 As in so many
other areas of the law, the fairness and the appropriateness of the result are in
the eyes of the beholder. The same thing may appear ordinary to one person
and extraordinary to another; the perspectives on the object are different. In
any event, if words are to have any fixed meaning, something will have to be
ordinary for other things to be extraordinary.
Paramount is an understanding that limited notice is an exception within
another exception. The statutory framework already accepts that ordinary
covert action, by definition, should not be briefed to the full Congress and
should not be discussed in open hearings.472 The question is not whether to
have secrecy. The question is how much is appropriate and safe for a
democracy. A question of this sort does not lend itself to easy answers.
Applied to Predator strikes in Yemen, it is clear that some sort of presidential
finding was necessary because, consistent with plausible deniability, the
Executive Branch still does not admit its role. Much less clear is whether
notice of the impending Predator strike could have been delayed or limited in
Congress.473
V. TRANSPARENCY
The process for approving covert action and for notifying the
congressional committees should become more transparent to the public. This
can be done through an Executive Order or by statute. While secrecy is
necessary for effective covert action, the internal decision-making process, as a
relic from the Cold War days, is still too opaque to the public. For greater
470. Open questions are whether and how the courts would get involved in any challenge to
the constitutionality of legislation on the covert-action process.
471. See Intelligence Authorization Act, Fiscal Year 1991, sec. 602(a)(2), § 502.
472. Id.
473. Another troubling possibility is that President George W. Bush assigned traditional CIA
tasks to the Pentagon. By viewing counterterrorism on a battlefield rather than in the intelligence
sphere, the President and his advisers may have convinced themselves that congressional notice
was unnecessary. After 9/11, black ops may have spread beyond the Agency.
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accountability and increased public support, the President should spell out
more of the decision-making process.
The President could supplement the current Executive Order on
intelligence activities. More of the internal process at the CIA, particularly the
interaction between the CIA and the NSC, should be declassified. The
advantage of the President doing this on his own initiative is that some
constitutional questions concerning how far Congress can go in this core area
of national security and foreign policy are avoided.
From American history, the public knows that sometimes the White House
may initiate a covert action. At other times, the CIA, either through contacts in
the White House or the NSC, may initiate the program.474 And, at other times,
another agency such as the State Department or the Defense Department may
put forward the covert action.475 In providing more transparency about the
process, the President should clarify the usual mode for initiation, namely
whether it is “top down” from the White House or “bottom up” from the CIA.
This usual mode can be shared with the public without tying the President’s
hands and without any damage to national security. By taking away some of
the unnecessary mystery to the process on Predator strikes and other covert
actions, the new Executive Order will increase public support for this third
option between diplomacy and combat.
No matter what, a crafty and perseverant member of the public can gather
clues about the American procedures for approving covert action. Some of
those clues come from articles by newspaper reporters on the CIA beat and
from pieces by retired CIA officers. William Daugherty’s book is especially
useful. Daugherty, a liaison officer between the CIA and the NSC, describes
the various committees, all with lawyers involved, which worked up proposals
for covert action during his tenure at the CIA.476 There is a Covert Action
Planning Group (CAPG), chaired by the head or the deputy head of the
Directorate of Operations.477 If the CAPG approves, the proposal goes to the
Covert Action Review Group (CARG), chaired by the CIA’s executive
director.478 If the CARG approves the proposal, it goes to the Director of the
Central Intelligence Agency or the Deputy Director.479 If the DCIA or the
DDCIA approves, the proposal goes to the Interagency Working Group for
Covert Action (IWG).480
474. See ANDREW, supra note 138, at 206–07, 481–82.
475. Id. at 271–73.
476. See DAUGHERTY, supra note 5, at 104.
477. Id. The Directorate of Operations (DO) has been renamed the National Clandestine
Service.
478. Id.
479. Id.
480. Id.
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Thus, in the typical case, the proposal goes through internal committees at
the CIA and an interagency group before it is presented to the NSC. At the
NSC, the proposal typically passes through two tiers before reaching the
President for his signature.481 First, the deputies committee at NSC will
discuss and revise the proposal.482 Next, the principals committee, which
includes the relevant cabinet secretaries, will decide whether to recommend the
covert action to the President.483
For the most part, President George W. Bush continued to use the covert
action procedures, changing the name of the IWG and perhaps giving the Vice
President a larger role than usual.484 The new President, more explicitly than
the prior one, should confirm that internal committees at the CIA are still
involved in approving covert action and that the NSC still considers proposals
in two tiers. Further, the President should specify what sorts of covert actions,
if any, must have the DCIA’s approval, rather than his deputy’s, in the CIA’s
internal process. Finally, the President should specify in what circumstances,
if any, the internal committees or the NSC meetings may be bypassed to allow
the DCIA, or someone else, to go straight to the President for approval.
A special area of interest is the potential role of the Attorney General in
reviewing and approving covert action. Is he a member of any formal internal
groups? Or just an observer? Many commentators probably believe that the
more active the Attorney General is, the less likely it is that illegal actions will
take place. That is not always true, though. Bobby Kennedy, as noted, was
not always the voice of reason from the Justice Department on covert actions
against Fidel Castro.485 But too much should not be made of Bobby Kennedy.
The Attorney General, more independent from the intelligence community
than lawyers at the CIA and the NSC, is well-suited within the Executive
Branch to ensure that the covert-action process has complied with internal
guidelines, statutes, and the Constitution. By a new executive order or statute,
the Attorney General should play a role in passing on the legality of covert
action.
Another area of interest is the potential role of the Director of National
Intelligence (DNI). The DNI was created in 2004 as an “intelligence czar” of
sorts.486 Since then, the DNI has replaced the DCIA as the person who gives
the President his daily intelligence briefing.487 After the intelligence
481.
482.
483.
484.
485.
486.
A23.
487.
DAUGHERTY, supra note 5, at 104–05.
Id.
Id.
Id.
See supra notes 159–64 and accompanying text.
See Richard A. Posner, Important Job, Impossible Position, N.Y. TIMES, Feb. 9, 2005, at
Id.
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reorganization, the DNI “shall perform such other functions as the President
may direct.”488 His subordinate, however, still reports to the President and the
National Security Council; in other words, the DCIA shall “perform such other
functions and duties related to intelligence affecting the national security as the
President or the Director of National Intelligence may direct.”489 As a result,
both the DNI and the DCIA are connected to “such other functions,” the
traditional codeword for covert action.
What remains unclear in practice is whether the DNI or the DCIA is the
person most involved in recommending covert actions to the President.
Further, no matter who makes the recommendations, it is unclear who manages
the CIA’s operators in carrying out covert actions: the DNI or the DCIA. So
many arrangements are possible. On such important questions, the new
President owes the country a bit more clarity. The DNI, after all, may have
only added a layer of bureaucracy to the intelligence community. At best, the
DNI has taken the lead in coordinating analysis and collection. The DNI, by a
new executive order or statute, does not need a comprehensive role on covert
action. Going forward, the DCIA can continue the traditional role of briefing
covert-action plans to the NSC and the President, and the covert-action
machinery does not need to be moved from CIA to the Office of the Director
of National Intelligence. In short, although the DNI should participate in the
covert-action process by giving the President his counsel, the DNI should not
manage the process or the operations.
If the President refuses to provide more transparency about the covertaction process, Congress should fill in more of the blanks by legislation that
either receives his signature or overrides his veto. The public does not need to
know the names of the people or countries involved in a covert action because
that would take most, if not all, of the “covert” out of the action. The public,
however, does deserve to know more about the process by which its
government determines what to do with the third option.
Whether Congress has the constitutional power to require more specificity
from the President about the internal process for deciding on covert action is a
very difficult question. Unlike the current legal framework, which provides for
classified briefings to the intelligence committees, my proposal would require
the President to inform not only select members of Congress but the rest of the
public. My proposal, as a variant on the Freedom of Information Act,490 would
open up more of the government’s activities to public scrutiny. Although my
proposal is simple, calling for specifics along the lines of National Security
Decision Directives which have trickled out to the public, its constitutionality
488. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458,
§ 1011(a), 118 Stat. 3638, 3650 (codified at 50 U.S.C. § 403-1(f)(7) (Supp. V 2001–2006)).
489. 50 U.S.C. § 403-4a(d)(4) (Supp. V 2001–2006).
490. 5 U.S.C. § 552 (2006).
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is complex. Does Congress have an enumerated power, amplified by the
Necessary and Proper Clause, to enact such a statute? Or would such a statute
violate the Constitution by trespassing on executive territory?
These questions replay the debate about whether Congress can require
advanced notice of covert action, a debate that was on display in the majority
and minority reports from the Iran-Contra investigations.491 Those who defend
Congress tie the need for information and notifications to the power of the
purse.492 For Congress to decide whether to fund or to continue to fund a
covert action, so the argument goes, Congress must know what the CIA is
doing with its appropriations. The argument continues that for voters to decide
on whether they approve of the Executive’s foreign policy, they must have
some sense, either directly or indirectly through their representatives, of what
is being done on the dark side. Thus, my transparency statute could be linked
to Congress’s established role in conducting oversight on intelligence
activities.
On the other hand, those who defend executive power stress the need for
secrecy and agility in conducting American policy.493 Nothing is gained, they
might say, by requiring things on the public record that Congress already
learns in closed session when the executive reports on findings, memoranda of
notifications, and other significant intelligence activities. Further, the
defenders of executive power might remind everyone that the President has the
prerogative to decide what is classified and what is not. They might claim
damage (or potential damage) to American national security from too much
detail about covert action being shared with the public.
As far as the public knows, the Executive has not refused to explain—at
least to the intelligence committees—the internal process to covert action.
Even so, the two committees do not equal two branches of Congress, and two
branches of Congress do not equal the American public.
A cynical response to the debate about congressional and executive power
might say that it is unlikely that the courts would become involved if my
transparency statute were enacted—presumably over the President’s veto. The
political question doctrine, to use the Supreme Court’s name, would cover the
argument with a constitutional mist. In a free for all, my transparency statute
might replay the maneuvers around the War Powers Resolution, another battle
between Congress and the President on foreign policy. For War Powers, the
courts have stayed out of the way to let the two elected branches search for
compromise.494
491. See Peter Raven-Hansen & William C. Banks, Pulling the Purse Strings of the
Commander in Chief, 80 VA. L. REV. 833, 857–69 (1994).
492. See, e.g., id. at 835.
493. See, e.g., Block & Rivkin, supra note 338, at 323–24.
494. See generally Lowry v. Regan, 676 F. Supp. 333 (D.D.C. 1987).
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At the end, even with the courts on the sidelines, the two other branches
should not commit constitutional errors. Members of Congress, having taken
oaths to uphold the Constitution, should not pass a statute that they believe
violates our charter. The President, taking care to execute all laws, should not
put the unconstitutional into practice. They should do what is right.
CONCLUSION
From the hindsight of a new century, some historical and legal markers to
American covert action are clear. We have gone from fixing elections in Italy
to deposing foreign leaders in Iran and Guatemala to killing suspected
terrorists in Yemen. We started with something close to congressional apathy
about political action, propaganda, paramilitary actions, and economic
subversion—and ended with congressional participation on such projects.
Two broad principles are also clear. First, to defend our great nation, we
need some sort of covert action; the State Department and the Defense
Department are not enough. But, second, to prevent shadow warriors from
turning back on us, we need some measures of accountability at the CIA. The
challenge is to pursue these principles at the same time. One person’s
legitimate oversight on intelligence activities becomes another person’s
micromanagement. Even to the sharpest eyes, the lines between executive
prerogative and congressional power are still blurred.
My proposal, akin to legislation that supplanted the era of unchecked
covert action, namely Hughes-Ryan, the Intelligence Oversight Act of 1980,
and the Intelligence Authorization Act of 1991, searches for an effective
arrangement between the President and Congress. For approving and
conducting covert action, a bit more transparency about the process should
help.
My proposal is evolution, not revolution. Besides worrying about
terrorists who want to blow us up, the American people should worry about
presidents who delegate too many things to their underlings and notify
Congress too little about the dark side. In an age of terror, Predator strikes on
vehicles in the Yemeni desert pose significant problems for those who seek
that elusive balance between security and democracy.